E. I. DuPont Co. v. Pennsylvania & Indiana Coal Co. ( 1911 )

Ibach, J.

This action was brought by appellant against appellee, on account, for goods and merchandise sold. Appellant, being a nonresident, filed a cost bond and an affidavit and undertaking in attachment. No contest was made in the attachment proceedings. Appellee filed an aswer in general denial. The cause was submitted for trial without a jury, and the judge took the evidence under advisement before rendering his findings. The evidence showed that some of the goods for which the action was brought were furnished under a written contract, and the judge indicated to appellant that he would not hold the attachment good as to the portion sold under the written contract. Appellant was then allowed to file its ancillary complaint, affidavit and bond as another creditor in attachment on the items covered by the written contract. Appellee moved to dismiss this anciliary complaint and proceedings. . Appellant then filed a second and third paragraph to the original complaint, the second covering the items of the original complaint which were not covered by the written contract and the third embracing the items under the written contract. The court sustained appellee’s motion to strike out the ancillary complaint and affidavit in such proceeding. Appellee filed a verified pleading, called an answer, setting np matter in abatement of appellant’s second and third paragraphs of complaint, ajid asking that these paragraphs he tried as a separate canse of action. Appellant’s demurrer to this answer was overruled, and it filed a reply in general denial. The court found for appellant on the original complaint for the amount of the items not covered by the written contracts, and ordered the property attached to bo sold to pay this amount. It also found as to all other matters for appellee on the plea in abatement, and ordered the third paragraph of the complaint tried separately. Appellee filed its answer to the third paragraph of complaint. The court found for appellant, rendering a personal judgment for the amount embraced under this paragraph. Appellant’s motions to modify the judgment, for a finding that it was entitled to recover the whole amount under the attachment, and for a new trial were overruled.

It is assigned that the court erred (1) in overruling appellant’s demurrer to the special answer of appellee, (2) in sustaining appellee’s motion to strike out appellant’s ancillary complaint and affidavit in attachment, (3) in overruling appellant’s motion to modify the judgment, and (4) in overruling appellant’s motion for a new trial.

The parties in their briefs spend much time in arguing whether the proceedings constituted one or more than one trial, and it must he admitted that the record as to this point, as well as to other points, is confusing, which is apparent from the foregoing summary of its contents. The disposition made of the second error assigned will make it unnecessary for us to enter into this matter, or to consider the other errors assigned. The second assignment presents the question, Has a plaintiff the right as a creditor, to file an ancillary complaint in his own attachment suit? This question is entirely novel, so far as we are able to ascertain; and as we cannot be led by direct authority, it becomes a matter of statutory interpretation. The procedure in attachment is entirely regulated by statute. Section 978 Burns 1908, §943 R. S. 1881, provides that “any creditor of the defendant, upon filing his affidavit and written undertaking, as hereinbefore required of the attaching creditor, may, at any time before the final judgment in the suit, make himself a party to the action, file his complaint, and prove his claim or demand against the defendant.” There is no limitation on the term “creditor” in the wording of the statute, and no implication that the creditor who may file his complaint therein must be other than the attaching creditor. "We can conceive of no reason, conflicting with the spirit or the letter of the statute, why the original attaching creditor, who finds that he has a claim against the defendant, which is not contained in his original complaint, may not file an ancillary complaint as a creditor. To deprive him of this right would be to put him at a disadvantage compared with other creditors, and would compel him, if he had a cause of action against the defendant in which attachment is proper, and which, for any reason, he had omitted to include in his original complaint and affidavit, to go to the trouble and expense of again instituting attachment proceedings, thus multiplying litigation, and increasing costs, although it is among the very purposes of the statute to avoid such. Appellant filed its ancillary complaint, affidavit and bond, as a creditor, in the proceeding in due time, before final judgment in the suit; therefore the court erred in striking them out on appellee’s motion.

It may be contended that this error was made harmless to appellant, because the court allowed it to file additional paragraphs to its original complaint, setting up the same matter found in the pleading stricken out. But appellant could not amend its original affidavit and thus bring the new matter alleged in the additional paragraphs of complaint uqder the original attachment proceedings. The affidavit must set forth the nature of the claim, and cannot be amended in that respect. §950 Burns 1908, §916 R. S. 1881; Fargo & Co. v. Cutshaw (1895), 12 Ind. App. 392. The error committed by the trial court in striking out appellant’s pleading and affidavit deprived it of its statutory right, as a creditor, to have the benefit of the attachment proceedings already begun, and for this error-the judgment is reversed and the cause remanded, with directions to grant a new trial, to overrule appellee’s motion to strike out appellant’s ancillary complaint and affidavit as a creditor, and for further proceedings not inconsistent with this opinion.