Whinery v. Kozacik
| Decision Date | 11 October 1939 |
| Docket Number | 27284. |
| Citation | 22 N.E.2d 829,216 Ind. 136 |
| Parties | WHINERY v. KOZACIK et al. |
| Court | Indiana Supreme Court |
Appeal from Superior Court, Porter County; Mark Rockwell, judge.
Carl A. Huebner, of Hammond, for appellant.
Crumpacker & Friedrich and Tinkham & Tinkham, all of Hammond for appellee.
William J. Whinery, in his lifetime, brought this action against appellee Kozacik to recover for professional services rendered said appellee at his special instance and request. Upon the death of William J. Whinery, appellant was substituted as plaintiff. The action was filed in the Lake Superior Court, but was later venued to the Porter Circuit Court. By leave of court, appellant filed a supplemental complaint, which was answered by a general denial. There was a trial which resulted in judgment for appellant for $843.27. Judgment for that amount was entered on November 22, 1934. On December 21, 1934, appellee filed his motion for a new trial alleging twenty-one reasons therefor. The record up to this point shows the proceedings to be regular and of the usual character. But following this, the record discloses a most unusual and strange proceeding. On April 5, 1935, appellee filed what he called, 'an affidavit in support of his motion for a new trial, setting forth the discovery of new matter after the expiration of the term.' In this affidavit, he stated the fact that on the ___, day of December 1934, the Porter county court-house was destroyed by fire, and in the conflagration the court reporter's notes were destroyed, and, therefore, the defendant's testimony was not available in presenting his motion for a new trial, or on appeal, in the event the court denied a new trial. The record discloses that by stipulation, the parties agreed that appellee's affidavit supporting his motion for a new trial 'shall Operate and be considered as a complaint for cause for new trial discovered after term', and be consolidated with appellee's motion for a new trial. Appellant answered this complaint by general denial. There was a trial of the issue thus formed, and the court sustained appellee's motion for a new trial, 'on the grounds set forth in defendant's affidavit in support of his motion for a new trial, * * * and defendant's motion for a trial is denied as to each of the twenty-one specifications contained therein * * *.'
From this order granting appellee's motion for a new trial, an appeal was taken to the appellate court. See Whinery v. Kozacik, 1937, 104 Ind.App. 349, 11 N.E.2d 86. The above procedure is not material to the question here presented. The fact that a motion for a new trial was filed and sustained is all that is important.
On April 5, 1935, after appellee had filed his motion for a new trial, and before the court had ruled thereon, appellant filed an affidavit in garnishment against appellees Kleiheg and The Hammond Theatrical Company. In the affidavit in garnishment, appellant alleged that appellant had obtained a judgment against the defendant Kozacik for $843.27 on the 22nd day of November 1934 for services rendered and due the estate, and that the defendant now is a non-resident of the State of Indiana; that William Kleiheg and the Hammond Theatrical Company, both of Lake County, Indiana, have property of the defendant Kozacik in the sum of $27,000 by reason of a judgment obtained by the said Kozacik against them in the LaPorte Circuit Court of Indiana. Summons was asked and granted against the defendants to answer in garnishment. The proper bond was filed by appellant and the two above appellees were duly served with process to appear and answer the affidavit filed by appellant.
On September 9, 1937, the defendants Kleiheg and the Hammond Theatrical Company by counsel appeared, and filed a motion to dismiss the garnishee proceedings for the reason that the affidavit in garnishment filed herein was based upon a judgment obtained against the defendant Kozacik on November 22, 1934; that said defendant filed his motion for a new trial on December 21, 1934, and that said motion was sustained on Sept. 13, 1935, and a new trial ordered; that by virtue of the granting of said motion, the basis and the ground for the affidavit of the plaintiff, to-wit: said judgment, have been obliterated, and, therefore, the affidavit for attachment and garnishment should be dismissed.
On September 22, 1937, the defendant Kozacik filed a motion to quash the proceedings in attachment. The reasons urged were: (1) That the affidavit in garnishment is based upon the alleged fact that the defendant, Kozacik is a non-resident of the state of Indiana, and it is not alleged that he was a non-resident at the time the original action was filed, that his subsequent becoming a non-resident, even if true, would not constitute grounds for garnishment; (2) that the record shows that at the time the affidavit in garnishment was filed, judgment had been entered in favor of plaintiff, and urged that it was then too late to commence proceedings in garnishment; (3) that the record shows that the debt sought to be garnished was a judgment of the LaPorte Circuit Court, and, for that reason, the Porter Circuit Court was destitute of power or jurisdiction to affect the judgment of another court; (4) that when the court granted a new trial, thereby vacating the judgment upon which the attempted garnishment was based, the facts alleged in the affidavit, to-wit: that plaintiff had obtained a judgment against the defendant, Kozacik, became an erroneous and false statement of fact, and that the record so disclosed, and therefore there was no basis for the garnishment.
By agreement of the parties this cause was on September 22, 1937 transferred to the Porter Superior Court. Appellees' motion to quash and dismiss the proceeding in garnishment was sustained, to which ruling plaintiff excepted and perfected this appeal. The only question presented by this appeal is the correctness of the court's ruling in quashing the garnishment proceedings.
The record discloses that appellant obtained a judgment against appellee, Kozacik, for the sum of $843.27 on November 22 1934. On December 21, 1934, he filed his motion for a new...
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