Graham v. Klyla

29 Ind. 432

• Court: Indiana Supreme Court
• Decided: May 15, 1868
• Status: Published

Opinion

Gregory, C. J.

Suit against the appellant, commenced before a justice of the peace by capias ad respondendum, issued on the affidavit of the appellee, that the plaintiff had a legal demand against the defendants, then due; that they then were in the county, and were about to leave the same, taking with them property subject to execution, with which the debt might have been made, with intent to delay and defraud the plaintiff. The appellants appeared before the justice, and answered, under oath, in abatement, that one of them resided in Clark township, in Johnson county, and the other in Center township, in Marion county, 'in this State; denying that they were about to leave the county in which the action was commenced, taking property subject to execution, with intent to defraud the plaintiff. The answer was, on motion, rejected by the justice. A trial before the justice resulted in a judgment against the defendants, from which they ap|>ealed to the Tipton Circuit Court. A change of' venue took the case to the court below, in which latter court the defendants, on leave, refiled their plea in abatement, to which the plaintiff demurred. The demurrer was sustained, and this ruling is complained of here. The jury found for the plaintiff, but in answer to a special interrogatory, they answered that the defendants were not about to leave the county, taking property subject to execution, with intent to defraud the plaintiff! Motions for a new trial and for judgment on the special finding overruled, and this is assigned for error.

J. Green, for appellants. N. R. Overman and G. W. Loivley, for appellee.

The questions involved in this case were fully considered and settled in Harris v. Knapp et al., 21 Ind. 198. We adhere to the ruling in that case.

The judgment is affirmed, with costs, and ten per cent, damages. '