Wall v. Whisler

Worden, J. J.— Whisler, having recovered a judgment against one Lent, in the Circuit Court of Wabash county, and having issued an execution thereon which was returned nulla bona, filed an affidavit stating the recovery of the judgment, and the issuing and return-of the execution, and that the appellant, Wall, was indebted to Lent in the sum of 155 dollars on note and mortgage. Wall was summoned to answer, but Lent was not in any manner made a party to the proceedings. Wall appeared, and moved to set aside the complaint and dismiss the proceedings for the want of proper parties, but his motion was overruled and he excepted. Wall then answered, and such proceedings were had as led to an order by the Court that Wall pay the money into the hands of the clerk of the Court, there to await its further order. The proceedings were had under the provisions of sections 522 and those following, of the act concerning “proceedings supplementary to execution.” 2 R. S. p. 153. We are of opinion that the order of the Court, in this [229] case, cannot be sustained. Lent, the judgment-debtor, was, in our opinion, an indispensable party to the proceedings, for two reasons if for no other: First, he had a right to show that the debt sought to be reached, together with other property, if any, claimed by him as exempt from execution, did not exceed the amount exempted by law from execution, and that he was entitled to claim it as exempt. Second, if the proceeding against Wall would be no bar to a suit by Lent against him for the same cause of action, Lent not being a party, he should be made a party in order that the proceeding should be final, and that Wall should not be placed in a situation that might require him to pay the debt twice. If the proceeding in the absence of Lent would be a bar to an action brought by Lent against Wall for the same cause of action, then Lent was a necessary party, in order that he might have a “ day in Court,” and be permitted to sustain the alleged claim against Wall. In either view, Lent was a necessary party in order to a proper and final determination of the matter in controversy. J. U. Petitt and C. Cowgill, for the appellant. J. M. Washburn, for the appellee. The 22d section of the code, provides that “ The Court may determine any controversy between the parties before it, when it can be done without' prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the Court must cause them to be joined as proper parties.” We have seen that Lent was an indispensable party, in whose absence a complete determination of the controversy could not be had, and we think it was fatally erroneous to proceed to a determination in his absence. Per Curiam. The order of the Court below is reversed, and the cause remanded, with leave to the plaintiff to make Lent a party to the proceeding.