Kissell v. Anderson

Howk, C. J. — This was a proceeding supplementary to-execution, by the appellee, Hayden P. Anderson, as the execution plaintiff, against the appellant Peter Kissell, as the-execution defendant, and the appellant John Kissell, and divers other persons, who were alleged to hold certain property of, or to be indebted to, the said execution defendant. The proceedings were commenced under, and in conformity with, the provisions of sections 519 and 522 of the civil code. Upon the hearing of the cause, at special term, the court, found that certain personal property, particularly described, claimed by the appellant John-Kissell as his separate property, was not the property of said John Kissell, but was in fact the property of the execution defendant, Peter Kissell, and subject to the lien of the appellee’s execution, then in the hands of the sheriff of Marion county; and, upon this-finding, the court ordered and adjudged that the appellants,. Peter and John Kissell should forthwith surrender the said, personal property to the sheriff, etc., for levy and sale under-said execution. On appeal to the general term of the court, the judgment [487] at special term was affirmed ; and from this judgment of affirmance this appeal is now here prosecuted. By a proper assignment of error, the appellants have brought before this court the errors assigned by them in the general term of the court below, which were as follows : “1. The court erred in refusing the defendants a new trial herein; “2. The court erred in rendering judgment for the plaintiff for the amount of property mentioned in the decree; “3. The court erred in finding that the corn and other grain, potatoes and hay, raised on the farm by John Kissell, were the property of Peter Kissell and subject to the plaintiff’s execution.” The appellants’ motion for a new trial is not in the transcript of the record on file in this court, but the clerk of the court below has certified that the motion was “not on file.” The “written causes, filed at the time of making the motion” for a new trial, and upon which the motion was made, are a necessary part of the record, and in their absence we can not well say that the trial court erred in overruling the appellants’ motion for a new trial in the case now before us. In section 352 of the code it is provided that a new trial may be granted for certain specified causes, some of which causes, under section 355 of the code, “must be sustained by affidavit showing their truth.” When the written motion and causes for a new trial are not sot forth in the record, this court can not decide that the court below erred in overruling such motion, for it might well be that the motion had been overruled for the reason that the cause or causes relied upon for a new trial had not been properly assigned therein. Every reasonable presumption must be entertained and allowed in support of the court’s decision in overruling the motion for a new.trial, and as the motion and the causes assigned therein, for such new trial, are not found in the transcript, it is certain we think, that the record does not [488] exclude the presumption, that the appellants’ motion was correctly overruled, for good and sufficient reasons. Myers v. Murphy, 60 Ind. 282; Stott v. Smith, 70 Ind. 298 ; Bowen v. Pollard, 71 Ind. 177. The first alleged error, therefore, is not apparent in the record. No objections wore made below, by the appellants or either of them, either to the form or substance of the judgment rendered, in whole or in part. It is well settled by the decisions of this court, that such objections can not be made for the first time, in this court. Therefore, the second error is not well assigned and presents no question for our decision. Brownlee v. Hare, 64 Ind. 311. By the language used in the third alleged error, we suppose that the appellants intended to assign, that the finding of the court, as to the articles of property mentioned in said error, was not sustained by sufficient evidence. This would have been a proper cause for a new trial, in a motion therefor addressed to the trial court; but the record fails to show that it was assigned by the appellants as a cause for new trial, and it cannot be complained of, as error, for the first time in this court. This rule of practice is well settled and is, we think, wise and just. Under the early decisions of this court, in regard to proceedings supplementary to execution, under section 522 of the code, it is doubtful if any motion for a new trial would have been deemed necessary to the proper presentation here of any erroneous decision of the trial court. But, in the recent case of The Toledo, etc., R. W. Co. v. Howes, 68 Ind. 458, it was decided by this court, and, we think, correctly so, that, in proceedings supplementary to execution, under said section 522, against the execution defendant, and either his debtor or the custodian of his property, “pleadings may be filed and issues, either of law or of fact, may be joined by and between the plaintiff and the defendants, or either of them, or by and between the defendants, and [489] such issues so joined may be heard, tried and determined in the same manner as other issues of law orfact, in other civil actions or proceedings.” The effect of this decision is to place proceedings supplementary to executions substantially -on the same footing as any other civil action; and, therefore, if any party to such proceedings may wish to take the ■opinion of this court, in regard to any supposed error of the trial court therein, we are of the opinion that such error must be saved and presented in and by the record, in the same manner as in any other civil action. It follows that in the case at bar,' a motion- for a new trial, addressed to the court below at special term, was necessary to the proper presentation of the matters complained of as erroneous either in the general term below or in this court. McMahan v. Works, 72 Ind. 19. We find no error in the judgment. The judgment is affirmed, at the appellants’ costs.