Hardy v. Donellan

33 Ind. 501

• Court: Indiana Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Pettit, C. J.

It is objected that no notice of the ..application was given to appellant. The record and bill of exceptions show that he appeared by himself and attorney, and made no objection for want of such notice. This cured any defect for want of notice. It is claimed that the judge erred in granting the injunction without any other evidence than the complaint and the affidavit of the appellee, both of which were read to the judge on the hearing. There was no error in this, as the appellee was -a competent witness in his own behalf, and might have given oral -evidence or have used his affidavit at his option.

The complaint was filed against the appellant and three others, but only one appeals to this court; and the only remaining question for us to consider is, can one of two partners enjoin the levy of an execution in favor of a third person, against the other partner, and the sale of his interest in the partnership property for the latter’s individual debt? We are referred to no law which forbids this to be done, and we hold there is none. Shaeffer v. Fithian, 17 Ind. 463; Dean v. Phillips, 17 Ind. 406; Parsons on Partnership, 357, 358.

We Ho not say what the rights .of the purchaser at such sale would be. That may be a subject of future consideration.

W. R. Pierse and H. D. Thompson, for appellant. J. A. Harrison and J. Smith, for appellee.

The judgment and order-of said judge, so- far- as it relates to the appellant, is reversed, at the costs- of the appellee. Cause remanded for further proceedings not inconsistent with this opinion.