Pursell v. Pappenheimer

Hanna, J.

The facts of this case appear to be, that the appellees recovered a judgment against Pursell and Pursell, upon which an execution was issued, and, at the time these proceedings were instituted, was in the hands of the sheriff, but he was not able to find any property to levy upon. An affidavit and complaint of the appellees aver that the Pursells had, a short time before the rendition of the judgment, sold a large amount of property to one Marvin, for which they had taken his promissory notes, for 10,000 dollars, payable at certain periods of time agreed upon, neither of which notes had then matured.' They ask the Court to order the application, when paid, of so much of said indebtedness of Marvin as may be necessary to satisfy their judgment, and to forbid said Pursells from transferring said notes, &c., under §§ 522, 523, 524, 2 R. S. p. 153.

The defendants demurred, for the reason that the complaint and affidavit showed that the notes of Marvin were *329 not due. The demurrer was, we think, correctly overruled by the Court below.

The language of § 522 is, that upon an affidavit “that any person or corporation has property of such judgment-debtor, or is indebted to him in any amount,” &c., such person, &c., may be required to appear and answer. Section 523 provides for an examination, and requires that the same, and all answers, &c., shall be on oath, &c. Section 524 provides that, “upon the hearing, the judge of the Court may order any property of the judgment-debtor, &c., or any debt due to the judgment-debtor, to be applied to the satisfaction of the judgment; and forbids transfers of property and choses in action. And such judge or Court shall have full power to enforce all orders and decrees in the premises, by attachment or otherwise.” It is insisted by the appellant that there is not such indebtedness or “ debt due,” in this case, as was contemplated and intended to be embraced in and affected by this statute; and that none but debts which have matured at the time of the proceeding, can be reached thereby. Construing the latter part of § 524, which gives the power to forbid transfers, &c., with the language used in § 522, we are inclined, as before stated, to the opinion that this position of the appellants is not well taken, but that it embraces indebtedness, matured or not.

The appellant then filed an answer, which, if we properly understand it, was an attempt to set up a partial failure of consideration, as an answer to the whole proceeding. The notes of Marvin to the Pursells were given for real estate, for which a conveyance was executed. The Pursells were to complete a house thereon, which was partly done, and gave their bond in the penalty of 5,000 dollars to that effect. The answer alleges that they could not comply with their contract, and Marvin had advanced 800 dollars’ worth of materials, &c. If the answer was intended to cover more than the 800 dollars, it was too indefinite. If that was all it was intended to cover, or indeed, if it was intended to cover the 5,000 dollars, it was not an answer to the whole complaint. In either vie-w, the answer was *330 insufficient, and a demurrer was properly sustained; for the averment that the Pwsells could not comply with their contract, does not, of itself, make the answer good, whilst the conveyance of the land and the contract therefor remain in force.

I. Naylor, for the appellants. A. Thompson and B. L. Ristine, for the appellees.

The appellants refused to answer further, and the Court thereupon rendered a judgment in favor of the appellees against Marvin for 403 dollars, 38 cents — that being the amount of the judgment, interest, and costs in favor of the appellees and against the Pwsells — and ordered “that said Mcui'vin pay the same, with interest, on or before the 27th day of February, 1859 — that being the time that the first note in the complaint mentioned matures — and that, in default of said Marvin paying, &c., at that time, an execution issue against him for said sum, as upon other judgments.”

We are of opinion that the judgment against Marvin, in the form in which it is entered, is wrong; for the reason, among others, that if there should, before the note matures, be a failure of the consideration thereof, such failure could not be set up as a defense to the execution which might be issued upon such judgment.

If the, claim ordered to be applied upon the judgment, was due at the time the order was made, then such order could be enforced by attachment, &c.; but if it was not due, the better construction of the statute would appear to be, that the only order or decree that could be made should be to enjoin and forbid the transfer of the notes by the holder, or the payment by the maker, until such debt matures, or until the further order of the Court.

Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.