Martin, C. J.
This is an appeal from a judgment rendered against the appellant, Union Bank and Trust Company of Kokomo, and one Daniel R. Good, in proceedings supplementary to execution. The judgment on which the proceedings supplementary to execution was based was rendered in the Cass Circuit. Court against Daniel R. Good. An execution was issued on said judgment in Howard County, Indiana, and placed in the hands of the sheriff of Howard County where the .defendant, Daniel R. Good, lived. The proceedings supplementary to execution were filed in the Howard Circuit Court and the appellant was made a party defendant.
The court overruled the motion for a new trial, which was filed by the appellant, Union Bank and Trust Company.
The error assigned in this court and which the appellant relies upon for reversal is, that “the trial court erred in overruling the appellant Union Bank & Trust Company’s motion for a new trial.”
[260]*260The appellee’s verified complaint filed in said proceedings alleged that on the 9th day of April, 1948, plaintiff recovered a judgment against the defendant Good in the Cass Circuit Court of Indiana for $1,635 and costs; that thereafter, on the 9th day of June, 1948, plaintiff caused an execution to be issued thereon to the sheriff of Howard County, Indiana, that being the county in which the defendant Good then resided and still resides; that said sheriff has made diligent but unsuccessful search for property of defendant Good with which to satisfy said execution; that said execution is still in the hands of said sheriff unsatisfied and that said judgment is still wholly unpaid.
The complaint further alleged that the defendant, Union Bank and Trust Company of Kokomo, Indiana, has in its possession the following personal property of said defendant, Good, to-wit: a savings account in the approximate amount of $2,300, which property is not within any exemption but is subject to execution; that the defendant, Good, does not have sufficient property subject to execution aside from the property above described in the hands of the defendant, Union Bank and Trust Company, to satisfy said execution; that the defendant, Good, unjustly refuses to apply said assets in the hands of the defendant, Union Bank and Trust Company, to the satisfaction of the execution or judgment.
Thereupon the judge of the Howard Circuit Court issued the following order:
“Plaintiff, Dorothy Vandervoort, having filed in this court her verified complaint, showing that on the 9th day of April, 1948 she recovered a judgment against the defendant Daniel R. Good, in the Cass Circuit Court of Indiana for $1,635.00 and costs; that on the 9th day of June, 1948, she caused an execution to be issued thereon to the Sheriff of [261]*261Howard County, Indiana, being the county in-which said defendant Good then resided and still resides, which execution is now in said Sheriff’s hands unsatisfied; that said judgment is still wholly unpaid; that the defendant Union Bank and Trust Company has in its possession the following personal property of said defendant Good, to-wit: Savings Account in the approximate amount Of $2,300.00, which said property is not within any exemption but is subject to execution; that the defendant Good does not have sufficient property subject to execution aside from the property above described to satisfy the execution; that- the defendant Good unjustly refuses to apply said assets in the hands of the defendant Union Bank and Trust Company, to the satisfaction of the execution and judgment.
“It is therefore ordered that said defendant Daniel R. Good and said defendant Union Bank and Trust Co, be and appear before -this court, or the Judge thereof, on the 13th day of August, 1948, at 10:00 o’clock A. M. to answer concerning said property.
“JOSEPH A. NOEL “JUDGE PRO TEM, HOWARD CIRCUIT COURT.”
The record shows that this order • and a summons was served upon the defendant, Daniel R. Good, and the defendant, Union Bank and Trust Company, on August 6, 1948. Thereafter answers were filed, a trial had, and the court made the following order and judgment:
“And the Court having heretofore heard the evidence in said cause, and being duly advised in the premises, now finds that the allegations of plaintiff’s verified complaint herein are true, and that the relief prayed for therein should be granted. •
“It is now therefore ordered by the court that the following property of the defendant, Daniel R.' Good, in the hands of the defendant, Union’ Bank ’ and Trust Company on August 6, 1948, subject to execution, to7wit: the sum of $2,300.00, due from [262]*262the defendant, Union Bank and Trust Company to the defendant, Daniel R. Good, or so much thereof as may be necessary to satisfy the judgment of the plaintiff, Dorothy Vandervoort vs. Daniel R. Good, doing business under the firm name and style of Radio Stage Door Studio, cause- number 29915, in the Cass Circuit Court of Indiana, in the sum of $1,635.00 and costs, with interest at the rate of 6% per annum from June 9, 1948, shall be applied to the satisfaction of plaintiff’s said judgment, and it is further ordered that the sum of $2,300.00, or so much as may be necessary to satisfy said judgment with costs and interest, as aforesaid, shall be delivered by said defendant, Union Bank and Trust Company of Kokomo, Indiana, to the Clerk of the Cass Circuit Court of Indiana, forthwith.
“It is further ordered and adjudged by the court that the plaintiff recover of and from said defendant, Daniel R. Good, her costs in this action taxed at $40.20.”
The evidence in this case shows that on the 9th day of April, 1948, the appellee recovered a judgment against Daniel R. Good in the Cass Circuit Court of Indiana for the sum of $1,635 and costs; that thereafter on the 9th day of June, 1948, the appellee caused an execution to be issued thereon to the sheriff of Howard County, Indiana, that being the county in which the defendant, Daniel R. Good, then resided and has continuously resided to the date of the trial in this cause. Several days thereafter said sheriff of Howard County served said execution on the defendants, Daniel R. Good and the Union Bank and Trust Company, but said execution remains in the hands of said sheriff unsatisfied; that, said judgment in the sum of $1,635 and costs, is still wholly unpaid; that the first order of court, also the process in this proceeding, was issued and served on the defendants on August 6, 1948. On said date the appellant, Union Bank and Trust Company, had in its possession the following personal property of said de[263]*263fendant, Daniel R. Good: Savings Account, Number C-4194, in the sum of $2,807.92; that said credit was not within any exemption provided by law. Thereafter, on August 7, 1948, said entire credit was withdrawn from said bank by said defendant, Daniel R. Good, and on said date said bank paid said sum of $2,807.92 to said defendant, Daniel R. Good, at the latter’s demand; that neither of said defendants now have in their possession said bank credit, nor any part or proceeds thereof; that the defendant, Daniel R. Good, immediately thereafter gave approximately the entire amount of said savings account to his son who was at that time, and has been at all times since, a resident of the City of Toledo, Lucas County, Ohio.
The evidence further shows that the defendant, Daniel R.
Free access — add to your briefcase to read the full text and ask questions with AI
Martin, C. J.
This is an appeal from a judgment rendered against the appellant, Union Bank and Trust Company of Kokomo, and one Daniel R. Good, in proceedings supplementary to execution. The judgment on which the proceedings supplementary to execution was based was rendered in the Cass Circuit. Court against Daniel R. Good. An execution was issued on said judgment in Howard County, Indiana, and placed in the hands of the sheriff of Howard County where the .defendant, Daniel R. Good, lived. The proceedings supplementary to execution were filed in the Howard Circuit Court and the appellant was made a party defendant.
The court overruled the motion for a new trial, which was filed by the appellant, Union Bank and Trust Company.
The error assigned in this court and which the appellant relies upon for reversal is, that “the trial court erred in overruling the appellant Union Bank & Trust Company’s motion for a new trial.”
[260]*260The appellee’s verified complaint filed in said proceedings alleged that on the 9th day of April, 1948, plaintiff recovered a judgment against the defendant Good in the Cass Circuit Court of Indiana for $1,635 and costs; that thereafter, on the 9th day of June, 1948, plaintiff caused an execution to be issued thereon to the sheriff of Howard County, Indiana, that being the county in which the defendant Good then resided and still resides; that said sheriff has made diligent but unsuccessful search for property of defendant Good with which to satisfy said execution; that said execution is still in the hands of said sheriff unsatisfied and that said judgment is still wholly unpaid.
The complaint further alleged that the defendant, Union Bank and Trust Company of Kokomo, Indiana, has in its possession the following personal property of said defendant, Good, to-wit: a savings account in the approximate amount of $2,300, which property is not within any exemption but is subject to execution; that the defendant, Good, does not have sufficient property subject to execution aside from the property above described in the hands of the defendant, Union Bank and Trust Company, to satisfy said execution; that the defendant, Good, unjustly refuses to apply said assets in the hands of the defendant, Union Bank and Trust Company, to the satisfaction of the execution or judgment.
Thereupon the judge of the Howard Circuit Court issued the following order:
“Plaintiff, Dorothy Vandervoort, having filed in this court her verified complaint, showing that on the 9th day of April, 1948 she recovered a judgment against the defendant Daniel R. Good, in the Cass Circuit Court of Indiana for $1,635.00 and costs; that on the 9th day of June, 1948, she caused an execution to be issued thereon to the Sheriff of [261]*261Howard County, Indiana, being the county in-which said defendant Good then resided and still resides, which execution is now in said Sheriff’s hands unsatisfied; that said judgment is still wholly unpaid; that the defendant Union Bank and Trust Company has in its possession the following personal property of said defendant Good, to-wit: Savings Account in the approximate amount Of $2,300.00, which said property is not within any exemption but is subject to execution; that the defendant Good does not have sufficient property subject to execution aside from the property above described to satisfy the execution; that- the defendant Good unjustly refuses to apply said assets in the hands of the defendant Union Bank and Trust Company, to the satisfaction of the execution and judgment.
“It is therefore ordered that said defendant Daniel R. Good and said defendant Union Bank and Trust Co, be and appear before -this court, or the Judge thereof, on the 13th day of August, 1948, at 10:00 o’clock A. M. to answer concerning said property.
“JOSEPH A. NOEL “JUDGE PRO TEM, HOWARD CIRCUIT COURT.”
The record shows that this order • and a summons was served upon the defendant, Daniel R. Good, and the defendant, Union Bank and Trust Company, on August 6, 1948. Thereafter answers were filed, a trial had, and the court made the following order and judgment:
“And the Court having heretofore heard the evidence in said cause, and being duly advised in the premises, now finds that the allegations of plaintiff’s verified complaint herein are true, and that the relief prayed for therein should be granted. •
“It is now therefore ordered by the court that the following property of the defendant, Daniel R.' Good, in the hands of the defendant, Union’ Bank ’ and Trust Company on August 6, 1948, subject to execution, to7wit: the sum of $2,300.00, due from [262]*262the defendant, Union Bank and Trust Company to the defendant, Daniel R. Good, or so much thereof as may be necessary to satisfy the judgment of the plaintiff, Dorothy Vandervoort vs. Daniel R. Good, doing business under the firm name and style of Radio Stage Door Studio, cause- number 29915, in the Cass Circuit Court of Indiana, in the sum of $1,635.00 and costs, with interest at the rate of 6% per annum from June 9, 1948, shall be applied to the satisfaction of plaintiff’s said judgment, and it is further ordered that the sum of $2,300.00, or so much as may be necessary to satisfy said judgment with costs and interest, as aforesaid, shall be delivered by said defendant, Union Bank and Trust Company of Kokomo, Indiana, to the Clerk of the Cass Circuit Court of Indiana, forthwith.
“It is further ordered and adjudged by the court that the plaintiff recover of and from said defendant, Daniel R. Good, her costs in this action taxed at $40.20.”
The evidence in this case shows that on the 9th day of April, 1948, the appellee recovered a judgment against Daniel R. Good in the Cass Circuit Court of Indiana for the sum of $1,635 and costs; that thereafter on the 9th day of June, 1948, the appellee caused an execution to be issued thereon to the sheriff of Howard County, Indiana, that being the county in which the defendant, Daniel R. Good, then resided and has continuously resided to the date of the trial in this cause. Several days thereafter said sheriff of Howard County served said execution on the defendants, Daniel R. Good and the Union Bank and Trust Company, but said execution remains in the hands of said sheriff unsatisfied; that, said judgment in the sum of $1,635 and costs, is still wholly unpaid; that the first order of court, also the process in this proceeding, was issued and served on the defendants on August 6, 1948. On said date the appellant, Union Bank and Trust Company, had in its possession the following personal property of said de[263]*263fendant, Daniel R. Good: Savings Account, Number C-4194, in the sum of $2,807.92; that said credit was not within any exemption provided by law. Thereafter, on August 7, 1948, said entire credit was withdrawn from said bank by said defendant, Daniel R. Good, and on said date said bank paid said sum of $2,807.92 to said defendant, Daniel R. Good, at the latter’s demand; that neither of said defendants now have in their possession said bank credit, nor any part or proceeds thereof; that the defendant, Daniel R. Good, immediately thereafter gave approximately the entire amount of said savings account to his son who was at that time, and has been at all times since, a resident of the City of Toledo, Lucas County, Ohio.
The evidence further shows that the defendant, Daniel R. Good, on the date said verified complaint and proceedings supplementary to execution were filed and service of process had upon the defendants, did not have sufficient property subject to execution aside from said savings account and credit in the hands of the defendant, Union Bank and Trust. Company, to satisfy said execution; that the defendant, Daniel R. Good, refused to surrender said savings account and credit, or any part thereof, in payment of said judgment.
The appellant contends that the trial court erred in’ ordering the Union Bank and Trust Company to pay to the clerk of Howard Circuit Court on said execution said savings account and credit of the defendant, Daniel R. Good, or so much thereof as was necessary to satisfy said execution and costs.
Burns’ 1946 Replacement, §2-4402, provides, that after the issuing of execution, upon an affidavit that the judgment debtor has property (describing it), which he unjustly refuses to apply towards the satisfaction of the judgment, the court may order him to appear and [264]*264answer concerning the same, and that proceedings may thereafter be had for an application of the property, in satisfaction of the judgment, etc.
Burns’ 1946 Replacement, §2-4403, provides, after the issuing of an execution against the property of the judgment debtor, for summoning third persons to answer as to any property of the judgment debtor they may have in their possession and as to their indebtedness to him.’ ’
Burns’ 1946 Replacement, §2-4406, provides that upon the hearing,- the judge of the court may order the property.of the judgment debtor, not exempt from execution, in the hands either of himself or of any other person, or any debt due to the judgment debtor, to be applied to the satisfaction of the judgment, and forbid transfers of property and dioses in action; and that the judge shall have power to enforce all orders and decrees in the premises, by attachment or otherwise.
Everything in which there may be ownership and which may be available for the payment of judgments, can be reached by proceedings supplementary. 2 Gavit, Indiana Pleading and Practice, §569, p. 2694; Baker v. State ex rel. Mills (1886), 109 Ind. 47, 9 N. E. 711.
Money on deposit in any bank may be reached by proceedings supplementary. 2 Gavit, Indiana Pleading and Practice, supra; Pouder et al. v. Tate (1892), 132 Ind. 327, 30 N. E. 880; O’Brien et al. v. Flanders (1877), 58 Ind. 22.
The proceedings supplemental to execution, in our opinion, was intended not only to discover property, ' but to reach credits and other property which the judgment debtor refused to apply in payment of the judgment, and which cannot be reached by an ordinary execution.
[265]*265The appellee in this ease was seeking to reach and apply to the payment of her judgment the credits due the defendant, Daniel R. Good, as represented by the records of the appellant, now in controversy and which she alleged Daniel R. Good was unjustly withholding. By the commencement of her suit and the service of process and notice on the appellant bank she acquired an equitable lien on the credit and funds due the defendant, Daniel R. Good. Butler et al. v. Jaffray et al. (1859), 12 Ind. 504; Pouder et al. v. Tate, supra; Graydon v. Barlow et al. (1860), 15 Ind. 197; Cooke v. Ross et al. (1864), 22 Ind. 157.
In the case of Routh, Admr. v. Spencer et al. (1871), 38 Ind. 393, the court said:
“In a proceeding supplementary to execution, the lien in favor of the creditor attaches against the debtor of the execution defendant from the time the process is served on him. Cooke v. Ross, 22 Ind. 157. Spencer and Crocker, by the commencement of such proceedings and the service of process on Canady, acquired an equitable lien on the proceeds of such sale in the hands of Canady, and this equity ripened into a legal right when they obtained a judgment requiring Canady to pay such proceeds to them or for their use.”
The appellant bank could in no wise affect that lien by any act of its own without the consent of the appellee. Pouder et al. v. Tate, supra.
The appellant bank, without the consent of the appellee and without any- order of the court authorizing it to do so, paid the credit of $2807.92 due the defendant, Daniel R. Good, who in turn gave it to a son in Ohio beyond the jurisdiction of the court. The payment of the credit of $2807.92 by the appellant bank to one of the parties to the suit, without the order of the court or the consent of the appellee, [266]*266was wrongful and the court did right in treating said bank as still in the custody of the credit due the defendant, Daniel R. Good. Pouder et al. v. Tate, supra. There is no available error in the record.
Judgment affirmed.
Bowen, J., dissents, with opinion.