Williams v. Lyddick

ON PETITION FOR REHEARING By our decision in this appeal we held that a general writ of execution against property would not issue on a joint and several judgment in personam against a husband and wife after the lapse of more than 10 years from the date of its entry where both husband and wife had been discharged in bankruptcy after the entry of such judgment but before the issuance of the writ of execution was sought. We are charged with error in so holding on the theory (1) that § 2-3306, Burns' 1933, § 522, Baldwin's 1934, authorizes the issuance of such an execution on a judgment over 10 years old if any part thereof remains "unsatisfied and due;" (2) that under the provisions of § 2-3311, Burns' 1933, § 529, Baldwin's 1934, the sheriff is required to levy on such property only as is subject to execution; and (3) that by reason of their respective discharges in bankruptcy the separate property of the appellants is not subject to execution and any attempted levy thereon can be enjoined. The fallacy in this argument lies in the fact that the property of a discharged bankrupt in excess of $1,000.00 in valueis subject to execution issued on a judgment that is unsatisfied and due. Before the lapse of 10 years from the date of its entry, the presumption is that a judgment, unreleased of record, is unsatisfied and due and the statute permits execution to issue as a matter of course upon the filing of a written praecipe therefor. §§ 2-3303, 2-3305, Burns' 1933, §§ 525, 521, Baldwin's 1934. After the lapse of 10 years an execution can issue only by leave of court. A written motion for such leave must be filed and 10 days notice given the judgment debtor, unless he be absent or a non-resident of the state or cannot be found, when service of notice may be made by publication, as in an original action, or in such manner as the court shall direct. "Such leave shall not be given unless it be established by the oath of the party, or other satisfactory proof, that the judgment or some part thereof remains unsatisfied and due." § 2-3306, Burns' 1933, § 522, Baldwin's 1934.

When the appellees' predecessor in title filed a motion for leave to issue execution on the judgment here involved and had notice issued as provided by the above statute, it 2-4. commenced an action at law the conduct or progress of which was governed by the procedure fixed by the civil code. White v. White (1933), 98 Ind. App. 587, 186 N.E. 349. The issue to be determined by the court was whether any part of the judgment upon which execution was sought remained "unsatisfied and due." The appellants appeared and filed answer in which each pleaded a discharge in bankruptcy of all separate and several liability by reason of the judgment in suit. This answer was a complete bar to the issuance of an execution calculated to enforce such separate and several liability. The evidence in support of such answer was conclusive, undisputed and susceptible to but one conclusion. Certainly when the appellants were relieved of their individual liability on the judgment by a discharge in bankruptcy there remained nothing due from them individually by reason of such judgment and the issuance of an execution subjecting their separate property to seizure and sale was erroneous. It is probably true that a levy and sale could be enjoined, not because the property seized was exempt from execution but rather because such execution was illegally issued. However, the fact that the levy of an illegal execution can be enjoined is no reason for the affirmance of an erroneous judgment authorizing its issuance. To so hold would be to say that because the appellants can ultimately obtain relief in equity they have no remedy at law. There is, of course, no such principle known to our jurisprudence.

An execution issued against two named judgment debtors, as was authorized in this case, subjects the separate property of either debtor to seizure and sale as well as the property owned by 5. them jointly, 33 C.J.S., Executions, § 38, p. 171, and on the undisputed evidence the court erred in consenting to its issuance.

Relying on First Nat. Bank of Goodland v. Pothuisje (1940),217 Ind. 1, 25 N.E.2d 436, the appellees insist that the "third dimension" liability of the appellants as husband and wife was not destroyed by their respective discharges in bankruptcy because such liability was not a provable claim against their separate estates and their entirety property was beyond the reach of the bankruptcy court to administer. In our original opinion we did not, nor do we now, decide the question of the appellees' right to a special execution limiting the sheriff's authority to satisfy the judgment in question out of specific entirety property. That character of execution was not sought by the appellees nor does the judgment in review so provide.

Petition for rehearing denied.

NOTE. — Reported in 62 N.E.2d 88.