Nave v. Clark

5 Ind. 243

• Court: Indiana Supreme Court
• Decided: June 9, 1854
• Status: Published

Opinion

Per Curiam.

Bill in chancery. It is alleged that one William C. Cline, on the 8th of Jme, 1850, obtained a judgment before Meloge, a justice of the peace, against one James Dugan, which was recovered for the use of Clark, the appellee, though not so entered on the justice’s docket; that prior to the institution of the suit in which said judgment was rendered, Clark was indebted to Dugan, by book account, in a sum nearly equal to the amount due from Dugan to Cline for Clark’s use; that Clark repeatedly proposed to offset his claim so held by Cline for his use, against the book account; but Dugan refused, afterwards sued Clark on the account before one Burk, a justice of the peace, and on the said 8th of Tune, 1850, recovered a judgment; that both judgments were rendered on the same day, and on the day they were obtained both were assigned. The one in favor of Cline was assigned to Clark, and the one against Clark was assigned to Nave, the appellant; that after these assignments, Clark proposed to offset the one judgment against the other; but Nave refused, has caused an execution to be issued on the judgment against Clark, and placed the same in the hands of a constable; that Nave, prior to the assignment of Dugan’s judgment, had notice of all the above-stated facts, and received that assignment for the purpose of defrauding Cla/rk. The bill prays that the collection of the judgment assigned by Dugan to Nave be enjoined; and for general relief.

In vacation, the president judge of the Court granted an injunction, which, upon answer, exhibits and depositions, Nave, at the next succeeding term of the Court, moved to dissolve. This motion was overruled, and Nave appeals to this Court.

The answer alleges that Nave received the assignment of the judgment in payment of a debt due to him from Dugan, without any intention whatever of defrauding Clark; that the assignment to Nave was made prior to the assignment to Clark; and that Dugan was solvent and able to pay the judgment which Clark holds against him. The residue of the bill is not either directly admitted or denied.

The facts charged in the bill present a case clearly within the jurisdiction of a Court of Equity; and the decision of this cause must turn alone upon the evidence. We have looked into the depositions, and are decidedly of opinion that the answer, so far as it denies the allegations in the bill, is disproved, and that the evidence fully sustains the ruling of the Court below.

C. G. Nave, for the appellant. J. S. Harvey and J. M. Gregg, for the appellee.

The decree is affirmed with costs.