Randolph v. Hill

11 Ind. 354

• Court: Indiana Supreme Court
• Decided: December 15, 1858
• Status: Published

Opinion

Hanna, J.

This was an action upon promissory notes and an account, in which a summons for defendant was issued and returned served by copy. The record also shows that upon affidavit and bond filed, an order to attach property was issued by the clerk, but does not show that it was delivered to the sheriff, nor does it appear among the records as having been served or returned by said officer. See Hancock v. Ritchie, at this term

(1).

The defendant appeared and answered, and upon issue joined, the cause was tried by the Court. Judgment for the plaintiff for the amount found due; and, also, “that the property attached by virtue of the order of attachment issued in this cause, to-wit, the south-west quarter,” &c., “ or so much thereof,” &c., “be sold as on executions in other cases."

A. Ellison, for the appellant. R. Parrett, for the appellees.

A motion for a new trial was made by the defendant and overruled. The record contains a bill of exceptions, which has in it the statement that the evidence there set forth was all the evidence given on the trial of the cause. There is nothing therein, showing that the property described in the judgment, or any other, had been attached.

The correctness of the judgment in this respect is the only point made in the brief of appellant.

Without stopping to determine whether, after the appearance, &c., of the defendant, the Court should have ordered property attached to be sold to satisfy the amount found due, we are of opinion that the order thus made, in this case, should be reversed because of the absence of sufficient testimony upon that point. Leach v. Swann, 8 Blackf. 68.

Peo• Owrkrn. — The judgment, except as to the order of sale of certain property, is affirmed; but as to that order of sale, it is reversed.

Ante, 48.