Mason v. Weston

Frazer, J. The record before us is a legal curiosity. It purports to be of proceedings “before the Hon. William A. [562] Cullen, judge, &c., at a term begun and held, &c., on Monday, the 17th day of June, A. D. 1867,” and yet it appears that the proceeding was commenced on the 9th of October, 1867, and ended in April, 1868. Then there is a 'bill of exceptions signed by “John K. Thompson, judge,” a gentleman not the regular judge of that court, nor, so far as the record informs us, even acting as such in the trial of the cause. Of course, this bill of exceptions must be disregarded, and hence we can take no notice of anything contained in it. Its eonténts furnish reason for the conjecture that some of the proceedings were not exactly in accordance with the law. If these remarks shall induce clerks to use some greater knowledge and care than is too often done in preparing transcripts for this court, and counsel to see before submitting their causes that they have a sufficient transcript here, something will be gained in the administration of justice, and the occupants of this bench relieved of occasional vexation. It is well said by the counsel for the appellant that this case is anomalous. The plaintiff called it below, upon the record, “ proceedings supplementary to execution” There was a complaint in two paragraphs, making the appellant and his wife defendants. The first paragraph alleged a judgment in favor of the appellee against the appellant in the Ripley Common Pleas, .the issue of an execution, and a return of nulla bona; that the appellant had property and moneys in said county not known to the plaintiffs, which he kept concealed, and refused to apply upon the judgment, and that his wife held in her own name in secret trust for the appellant, to enable him to defraud his creditors, a quarter section of land, described, of . the value of $4,000, the property of the appellant, and also personal property worth $1,000, which' could • not be described because unknown. The second paragraph related exclusively to the land, and contained such averments as would be proper in a complaint to subject the land to execution, except that it did not .allege, save by reference to the first paragraph, which was [563] no averment at all, that the plaintiff had any judgment or demand against the appellant. Neither of these paragraphs was verified by affidavit. The appellant and his wife were brought in by the service of an ordinary summons. There were motions to strike out this complaint, to set aside the process, and to dismiss the proceeding, which were severally overruled. It is. claimed that the allegations should have been verified by affidavit. It is evident that an attempt was made in this case to proceed under section 519 of the code, (2 Q-. ■& II. 261), but that statute requires an affidavit, without which the proceeding should have been dismissed. But, whatever was intended, the case was not properly one under that statute. A summons was not the process which it requires. The court below seems to have regarded it, in spite of the plaintiff’s nomenclature, as a suit, formerly in chancery, to discover the debtor’s property, and subject it to execution. We are not prepared to say that this was incorrect. It is a plausible proposition, however, that the court might properly have taken the plaintiff at his word,.and acted upon the assumption that the proceeding was what he' designated it. Separate demurrers to each paragraph of the complaint were overruled, and this is assigned for error.. We must, upon this question, reverse the judgment. Regarded as a complaint, the first paragraph alleged nothing as to personal estate, upon which a judgment could, under the present practice, be predicated. It alleged ignorance of the essential facts within the jurisdiction of the Common Pleas Court to act on, and an answer admitting the truth of its allegations would not have enabled the court to grant any relief. It could not have subjected the personal property to execution, because its nature and description did not appear. It could not have subjected the real estate held by the wife to execution, for the reason that it had no i jurisdiction to render such a judgment. That would be to pass upon the question of the wife’s title to real estate, which the Common Pleas has not power to do. A discovery in such a,- case, under the code, can [564] always be had under section 519, and we do not perceive that a complaint for such discovery will now lie. It is certainly unnecessary, the proceeding supplementary to execution being ample. The plaintiff may, in all cases, obtain a discovery by interrogatories filed with the complaint, and upon the filing of answers to them, he may, on leave, which would always be given, so amend his complaint as to meet the facts. Or he may take the defendant’s deposition. These provisions, we think, take the place of the former bill for discovery, and supersede it, in a case of this sort, at least, and possibly in every case. 2 Gr. & IT., § 295, p, 188. II. W. Harrington, M. K. Hosebrough, and S. M. Jones, for appellant. The second paragraph was bad for both causes assigned by the demurrer. 1. The want of sufficient facts, as already stated. 2. That the Common Pleas had no jurisdiction of the subject matter. The cause was dismissed as to the wife of the appellant after a verdict for the plaintiff, pending a motion by her for a new trial, and then a judgment was rendered subjecting the land to execution, the title to which was in her. It need hardly bo said that the judgment was utterly void as against her. The judgment is reversed, with costs, and the cause remanded, with directions to sustain the appellant’s demurrers.