Walmer v. Shulenberger

Indiana Supreme Court

Walmer v. Shulenberger

23 Ind. 454

DecidedNovember 15, 1864

StatusPublished

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Bluebook

Walmer v. Shulenberger, 23 Ind. 454 (Ind. 1864).

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Opinion

Elliott, J.

Suit by Walmer, the apjiellant, against Isaac Shulenberger on a note, on which, and an affidavit of the non-residence of the defendant, proceedings in attachment were instituted.

The plaintiff also filed an affidavit against Henry Shulenberger, the appellee, as garnishee, which., in addition to the other requirements of the statute, stated that the plaintiff feared that the said Henry Shulenberger would abscond before judgment could be had against him, or against the said Isaac Shulenberger, in said cause, and go without the state of Indiana, with intent to defraud the plaintiff, etc. The plaintiff also filed a proper undertaking under the statute, upon which an order for the arrest of said Henry Shulenberger was issued by the clerk, upon which he was arrested and gave special bail.'

B,. Lowry, for appellant. John H. Baker, for appellee.

The court, on motion of said Henry Shulenherger, set aside the order of arrest, and discharged him therefrom, and from his recognizance of special bail indorsed thereon, and further adjudged “ that the said garnishee defendant, Henry Shulenherger, recover of said plaintiff' his costs and charges in this behalf, laid out and expended.”

From which ruling and judgment of the court below the plaintiff appeals.

The appellee moves the court to dismiss the appeal for want of jurisdiction in this court, on the ground that the judgment appealed from is not a final judgment in said cause.

The motion must be sustained. The judgment for costs set out in the record is not the final judgment terminating the cause. It is but a judgment for the cost occasioned by the arrest and motion in the court below; and, for aught that appears from the record before us, the cause is still pending and undetermined in that court. See Abbott et al. v. Zeigler, 9 Ind. 511; Griffin v. Griffin, 10 Ind. 170; Martindale v. Brown et al., 18 Ind. 284.

Appeal dismissed, with costs.

Justice Gregory dissenting.

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Elliott, J.

Suit by Walmer, the apjiellant, against Isaac Shulenberger on a note, on which, and an affidavit of the non-residence of the defendant, proceedings in attachment were instituted.

The plaintiff also filed an affidavit against Henry Shulenberger, the appellee, as garnishee, which., in addition to the other requirements of the statute, stated that the plaintiff feared that the said Henry Shulenberger would abscond before judgment could be had against him, or against the said Isaac Shulenberger, in said cause, and go without the state of Indiana, with intent to defraud the plaintiff, etc. The plaintiff also filed a proper undertaking under the statute, upon which an order for the arrest of said Henry Shulenberger was issued by the clerk, upon which he was arrested and gave special bail.'

B,. Lowry, for appellant. John H. Baker, for appellee.

The court, on motion of said Henry Shulenherger, set aside the order of arrest, and discharged him therefrom, and from his recognizance of special bail indorsed thereon, and further adjudged “ that the said garnishee defendant, Henry Shulenherger, recover of said plaintiff' his costs and charges in this behalf, laid out and expended.”

From which ruling and judgment of the court below the plaintiff appeals.

The appellee moves the court to dismiss the appeal for want of jurisdiction in this court, on the ground that the judgment appealed from is not a final judgment in said cause.

The motion must be sustained. The judgment for costs set out in the record is not the final judgment terminating the cause. It is but a judgment for the cost occasioned by the arrest and motion in the court below; and, for aught that appears from the record before us, the cause is still pending and undetermined in that court. See Abbott et al. v. Zeigler, 9 Ind. 511; Griffin v. Griffin, 10 Ind. 170; Martindale v. Brown et al., 18 Ind. 284.

Appeal dismissed, with costs.

Justice Gregory dissenting.

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23 Ind. 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walmer-v-shulenberger-ind-1864.

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