Devan v. Ellis

Gregory, J. Hamilton E. Ellis filed his statement, under oath, in the court below, against James.Devon, John Diair, and Michael Devan, averring that he had recovered a judgment in that court against James Devan for $150; that he had caused an execution to he issued thereon, which had been returned unsatisfied; that James Devan is an unmarried man, and therefore not entitled to any exemption; that said James had caused his money to be loaned out and secreted from the plaintiff; that his property consists of notes, accounts and money which he refuses to apply to the payment of the judgment; that defendant Blair is indebted to said James in the sum of $600, for money loaned, and-that Michael Devan is indebted to said .James, or has moneys, notes and other property of the execution defendant in his hands and under his control, which ought to be applied in satisfaction of the judgment. Blair answered, without oath, denying the allegations of the complaint. Michael Devan answered, under oath, that he was not indebted, either directly or indirectly, to James Devan in any sum whatever; that he had no money, notes, or other property, of any kind whatever, in his hands belonging to, or in anywise the property of, said James, non had he the control, either as agent or otherwise, of anyj moneys, notes, or other property belonging to said James, and moved to dismiss the proceedings as to himself. The court below heard the case on the evidence, and found that the plaintiff, on, &c., recovered judgment in that court against James Devan for $150 and costs; [74] that on, &c., an execution issued on the judgment and remains wholly unsatisfied; that Blair had §83 in his hands at the time of the commencement of these proceedings, which he had thereafter paid over to to Michael Devan. The court, .on this finding,' rendered the following judgment: “It is therefore considered and ordered hy the court that said plaintiff recover of said defendant Michael Devan the sum of $83, together with his costs herein, taxed at-dollars, and that the said amount, when collected, be applied on said judgment, interest and costs.” The errors complained of are, 1. That the cause was tried without the motion to discharge Michael Devan being first decided. 2. That the court finds Blair indebted at the time of the service of the writ, and renders judgment against Michael Devan for the amount thereof. 3. That the judgment of the court is not such as the statute authorizes. 4. That there was a joint trial of three defendants, and a finding and judgment as to one only. 5. That the costs of the trial of three defendants are all adjudged against Michael Devan. The code provides that “ after the issuing or return of an execution against the property of the judgment debtor, or any one of the several debtors in the same judgment, and upon an affidavit that any person or corporation has property of such judgment debtor, or is indebted to him in any amount, which, together with other property claimed by him as exempt from execution, shall exceed the amount of property so exempt by law, such person, corporation, or any member thereof, may be required to appear and answer concerning the same as above provided. “ Witnesses may be required to appear and testify in the proceeding provided for in this chapter (article), and either party may examine the other as a witness, in the same manner as upon the trial of an issue; or the plaintiff may waive the answer of the debtor, and rely upon other testimony. All such examinations and answers shall be on the oath of [75] the party, except that when a corporation answers, the answer shall be on the oath of an officer thereof. S. Claypool and J. A. Matson, for appellant. D. E. Williamson and A. Daggy, for appellees. “Upon the hearing, the judge of the court may order any property of the judgment debtor, not exempt from execution, in the hands cither of himself or any other person, or any debt due to the judgment debtor, to be applied to the satisfaction of the judgment, and forbid transfers of property and dioses in action, and such judge or court shall have full power to enforce all orders and decrees in the premises by attachment or otherwise.” 2 G. & JET., §§ 522, 523, 524, pp. 261, 262. The evidence is not in the record. There was no exception taken in the court below, nor was. there any motion made as to the judgment for costs. We think there is nothing in any of the errors assigned. The judgment and order made against the appellant, although not strictly within the provisions. of the code, is not erroneous. The statute was substantially pursued. The judgment is affirmed, with costs.