Hall v. Hough

24 Ind. 273

• Court: Indiana Supreme Court
• Decided: May 15, 1865
• Status: Published

Opinion

Ray, J.

The objection that the amended complaint, filed by leave of court after the restraining order had been granted upon a properly verified complaint, was not supported by affidavit, cannot be raised by demurrer. Denny, Adm’r, v. Moore, 13 Ind. 418.

It is insisted that the complaint is defective in not containing copies of the judgments, executions, returns, and the sheriff’s deed. To require this would be simply requiring the proof proper to be introduced upon the trial of the issues to be made part of the complaint.

The facts stated in the complaint are sufficient, if true, to entitle the appellee to the relief asked. While the sheriff held the executions issued upon the judgment in favor of Benedict and others, and upon the judgment in favor of Miller, the execution defendant notified the said sheriff that he claimed the property as exempt from execution, and the same was thereupon set off to him. This relieved it from the lien of either execution in the sheriff’s hands, and the subsequent proceedings vested the title in appellee. The demurrer was, therefore, properly overruled.

The judgment is affirmed.