Yeager v. Davis

Citation13 N.E. 707,112 Ind. 230
PartiesYeager, Assignee, v. Davis, Adm'r, and others.
Decision Date03 November 1887
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Appeal from circuit court, Gibson county; O. M. Welborn, Judge.

H. A. Yeager, for appellant. C. A. Buskirk and W. M. Land, for appellees.

Niblack, J.

On the fourteenth day of March, 1871, Theopholis Wright recovered a judgment against John McIntire, before Zenas M. Weed, a justice of the peace of Gibson county, for the sum of $200. On the fourth day of April, 1876, Wright caused a transcript of the judgment thus obtained to be filed in the office of the clerk of the Gibson circuit court. Indorsements on this transcript showed that an execution had been issued on the judgment on the twenty-fourth day of March, 1871, and had been returned on the eighteenth day of September in that year, and that another execution had been issued on said eighteenth day of September, and returned on the sixth day of January, 1872, with Wright's receipt thereon for $50. Attached to the transcript was a certificate in the following words: “I do hereby certify the above to be a correct statement of the proceedings had before me in the above-entitled cause. Given under my hand and seal this third day of April, 1876, Z. M. Weed, Justice. [Seal.] On the nineteenth day of December, 1882, William C. McIntire, the father of John McIntire, being at the time the owner of certain tracts of land in Gibson county, died intestate. One undivided fifth part of these lands descended to John McIntire as one of the surviving children of the decedent, upon whose estate letters of administration were issued to George W. Davis, one of the appellees. On the ninth day of July, 1883, a certificate executed by Weed, the justice, stating that on the sixteenth day of January, 1883, an execution had been issued on the above-named judgment, and delivered to the proper constable, who had made a return that no goods or chattels could be found to satisfy the judgment, was filed in the proper clerk's office of the county. Wright on the same day filed with the clerk his affidavit, alleging that the judgment remained unsatisfied, and that there was then due thereon, as a balance of principal and interest, the sum of $269.95, and for costs the sum of $4.05. The clerk thereupon issued an execution upon the judgment, which was directed and delivered to the sheriff of Gibson county. The sheriff levied the execution on the undivided fifth part of the lands which had descended to John McIntire from his father, and advertised, and on the twenty-fifth day of August, 1883, sold, such undivided fifth part at sheriff's sale, Wright becoming the purchaser, and in due time receiving a sheriff's deed for the same. In the mean time Davis, as administrator of the estate of William C. McIntire, filed his petition in the Gibson circuit court, praying that the lands which had descended to John McIntire and the other children and heirs at law of the decedent Wright be sold to pay the debts and expenses outstanding against the estate, and making the said John McIntire and the other children and heirs at law defendants to such petition. That court accordingly ordered the lands in question to be sold to pay such debts and expenses. In pursuance of such order, Davis, on the fourteenth day of March, 1884, sold, and afterwards conveyed, such lands to a person other than Wright. On the twenty-ninth day of January, 1886, Davis filed in the office of the clerk of the court below his account for the final settlement of William C. McIntire's estate. The clerk, by his indorsement thereon, set the account down for hearing on the twentieth day of February, 1886. This account showed a balance of $901.99 in Davis' hands for distribution, which was the remaining part, and consisted of the proceeds of the lands sold by Davis, as hereinabove stated, and that of the amount John McIntire was entitled to receive the sum of $180.89. On the twenty-sixth day of February, 1886, the account not having yet been heard or acted upon, the appellant, Henry A. Yeager, filed his intervening petition, setting forth that on the thirtieth day of March, 1885, he had purchased of John McIntire all his interest in the estate of the decedent, William C. McIntire, and had received an assignment and transfer of such interest in writing, which he exhibited with his petition; and praying that the amount shown to belong to the said John McIntire should be ordered to be paid to him. On the same day the appellee Wright also filed an intervening petition, setting up the facts which led to his purchase, as well as the fact of his purchase of the interest of John McIntire in the lands which had descended to him from his father, and the sale of the interest so purchased by him, with the interest of the other heirs, by Davis, to pay the debts and charges against the estate of William C. McIntire, and praying that he might be subrogated to the right of the said John McIntire to a distributive share in the proceeds of the land so sold by Davis, and in his hands for distribution, as shown by the account for final settlement. After hearing the evidence submitted by the parties, and an examination of the matters embraced in the account for final settlement, the circuit court approved and confirmed the account, and ordered that Wright be subrogated to the interest of John McIntire in the money in Davis' hands for distribution, and that he (the said Wright) was entitled to...

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2 cases
  • Lewis v. Rex Metal Craft, Inc.
    • United States
    • Indiana Supreme Court
    • July 28, 2005
    ...it is fully and finally disposed of before the return date of the execution or the expiration of the judgment lien. Yeager v. Wright, 1887, 112 Ind. 230, 13 N.E. 707. Such a rule would put it in the power of any defendant to defeat the basic purpose of proceedings supplemental by delaying t......
  • Hinds v. McNair
    • United States
    • Indiana Supreme Court
    • October 26, 1955
    ...it is fully and finally disposed of before the return date of the execution or the expiration of the judgment lien. Yeager v. Wright, 1887, 112 Ind. 230, 13 N.E. 707. Such a rule would put it in the power of any defendant to defeat the basic purpose of proceedings supplemental by delaying t......

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