Judgments and Executions. notice, and not under a party to the record, or attorney of one. (a) A stay of execution, for certain periods, in proportion to the amount recovered, the longest of which is one hundred and eighty days when the sum and costs exceed one hundred dollars, may be had by putting in bail. One or more sufficient freehold sureties enter into a recognizance for the payment of the judgment, interest, and costs, accrued and to accrue. The recognizance may be taken by the clerk, before the writ issues, or by the sheriff, after he has received it. The recognizance is made a record, and has the force and effect of a judgment confessed in a court of record. Execution on the judgment stayed, and on the recognizance, shall issue jointly against the parties thereto; but the levy shall first be made on the property of the defendants in the original judgment. No stay is allowed on judgments against an attorney for money collected, or against persons or corporations for money deposited with them, or against clerks, sheriffs, coroners, treasurers, trustees of funds, and other public officers acting in a fiduciary capacity. When judgment is rendered against two or more persons, any of whom are sureties for the others, no stay of execution shall be allowed, if such sureties object at the time of rendering the judg ment, unless the bail for the stay of execution will specially undertake to pay the judgment, in case the amount cannot be made from the principal debtor. (b) An execution binds the goods and chattels from the time of its delivery to the officer, who indorses on it the exact date of its reception, but if there be several executions, whether issued from a court of record or not, in the hands of different officers, that execution, without regard to the time of its delivery, under which the first levy is made, shall have the preference and hold the property. In judgments on the bonds of any officer at the suit of the state of Indiana, the real and personal estate of the debtor shall be bound from the date of the process by which such suit was instituted. (c) The debtor may designate the property to be le (a) R. S. of 1843, 454–466. (b) Ib. 736-739. (c) Ib. 743-44. Judgments and Executions. vied on, and if he fails to do so, the officer may select; but the personal estate shall be sold before the realty is levied on. (a) All property taken in execution must be appraised, and cannot sell for less than its fair value. Each party chooses a disinterested householder as appraisers, who, in case of disagreement, choose a third; the appraisement of any two of them being taken as the value of the property. (b) There shall be no valuation or appraisement of property on judgments against state, county, or township officers, against executors, administrators, or guardians, for mis-feasance, mal-feasance, or non-feasance, against attorneys, for moneys collected, against banks, insurance companies, and savings institutions, or against the principal in any delivery bond. (c) By the act of February 13th, 1843, it is provided, that after the first day of June, 1843, any person, for a consideration arising wholly after that time, may agree in writing to pay any sum of money, without relief from valuation or appraisement laws; and judgment shall be rendered accordingly. (d) The amount of property exempt from execution shall not exceed the value of one hundred and twenty-five dollars. (e) Remedy against sheriff or attorney failing to pay over money collected. A sheriff failing to levy upon or sell property liable to an execution, or to return a writ of execution at the proper time, or to pay over the amount received by him to the person entitled, becomes liable, not only for the amount of the execution with interest and costs, but ten per cent. damages on the principal sum. This penalty may be recovered, either by action on the official bond of the officer, or upon motion, after ten days previous notice to the court to which the execution is returnable. (f) Where an attorney fails to pay over money collected by him to the person entitled, the latter, upon filing a complaint in the clerk's office of the court upon whose process the money was collected, at least ten days before the sitting of such court, may recover a judgment for the amount thus collected, with interest and costs and ten per cent. damages: the court shall also suspend the attorney from practice for any length of time in its discretion. (g) Effect of Death on the Rights of Creditors. 12. Effect of Death on the Rights of Creditors. When an estate is solvent, the personal representative pays the debts of the decedent in the following order. 1. The expense of administration. 2. The funeral expenses and those of the last sickness. 3. Taxes assessed previous to decedent's death. 4. Judgments, decrees, mortgages, and debts of record. 5. All judgments of courts, not of record, and all recognizances, bonds, notes, bills, demands, and unliquidated accounts whatsoever. No executor or administrator can give preference in the payment of any debt over other debts of the same class; except that the Probate Court may authorize him to pay rents due at decedent's death, in preferefice to debts of the fourth class. A debt due and payable, has no preference over one not due of the same class; nor does the commencement of a suit or the recovery of a judgment thereon entitle such debt to any preference over other debts of the same class. No action can be brought against any executor or administrator as such, until the expiration of one year from the date of his appointment. Every creditor of a decedent must file a statement of his demand, in the clerk's office of the Probate Court, within one year from the appointment of the personal representatives, and any creditor who fails to do so shall be barred of any preference in the payment of his debt on account of its superior dignity. The creditor must also within the year give notice of his claim to the executor or administrator, personally if he resides in the county where administration is granted; otherwise, by filing the notice in the clerk's office of the same. No executor or administrator is personally liable, on account of any debt or claim, for having paid a debt of inferior dignity thereto, before notice that a statement of the debt was filed as required, unless such inferior debt shall have been paid before the expiration of the time within which the statement is required to be filed. A debt not due may be paid, by an order of the Probate Court, a rebate of the legal interest being deducted. Effect of Death on the Rights of Creditors. The personal representative may require from every creditor satisfactory vouchers in support of his claims: or the affidavit of the claimant, that the debt is justly due and owing, that no payments have been made thereon, and that there are no set-offs against the same. (a) When an executor or administrator discovers that the personal estate is insufficient to pay the debts and liabilities of the decedent, he may petition the Probate Court for an order to sell the real estate. His petition must state the amount of personalty, his application of the same, the debts outstanding, the names and ages of the heirs, devisees and legatees if known; and must describe so much of the real estate as he may think necessary to sell. Before an order of sale is made, due notice of the petition, and of the time and place of hearing the same, must be given to the heirs, devisees and legatees, personally if they reside in the state, otherwise by publication. An inventory and appraisement of the realty, made in the manner prescribed for personal estate, shall be filed in the clerk's office of the Probate Court. If no good cause to the contrary be shown, the court will order such a portion of the realty to be sold as may be necessary, and the sale may be made privately or at auction as the court shall deem most expedient. But it cannot be sold for a less amount, with reference to its appraised value, than real estate can be sold for at the time under execution. Instead of selling the realty, the executor or administrator may be empowered to lease or mortgage the same, if the necessary amount of money can be procured upon such lease or mortgage. Any of the persons interested in the real estate may prevent the sale, lease, or mortgage of the same, by giving bond to the executor or administrator, in a sum and with sureties to be approved by the court, conditioned to pay all debts and liabilities which shall be eventually found to be due from the estate, so far as the personalty shall not be sufficient or liable therefor. When a creditor has obtained a judgment against an executor or administrator, and the execution thereon is unsatisfied for want of personalty, he may petition the Probate Court for a sale of the realty to discharge his judgment. The personal representatives (a) R. S. of 1843, 521-524. Courts. and the heirs, devisees, and legatees of the deceased must be made defendants and duly notified. The court, on being satisfied of the truth of the plaintiff's claim, shall require the executor or administrator to file his petition to convert the realty into assets for the payment of debts. (a) When an executor or administrator discovers that an estate is insolvent, it is his duty to petition the Probate Court to settle the same as such. This petition sets forth the condition of the estate, the outstanding debts, the probable deficiency, and makes the heirs, devisees and legatees defendants, and is verified by his affidavit. The court, on being satisfied of the truth of the petition, declares the estate insolvent, and directs notice to be given to the creditors, by publication, requiring them to present their claims within ten months from the date of the notice or they will not be entitled to payment. After filing the petition, suits against the estate are suspended, unless waste or fraud be alleged. After proof of due publication, the court proceeds to hear and determine all claims filed within the time allowed by law, or within such further time as the court, for good cause, may allow; which further time shall not exceed twelve months. Issues may be made up and the claims tried by a jury. After the estate has been converted into money, the personal representative pays the same into the Probate Court; and it shall constitute a fund to be paid out in the following order: 1. Expenses of administration. 2. Funeral expenses. 3. Expenses of last sickness. 4. All other demands which have been allowed, pro rata, without regard to their dignity. No lien is postponed or defeated; and if the estate bound is not enough to pay the lien, the balance unpaid shall share in the fund aforesaid, on being filed and allowed as other claims. (b) 13. Courts. The general original jurisdiction in civil cases is intrusted to the Circuit Courts, which hold two terms in the year, in each county, one in the spring, the other in the fall. There are also Probate Courts, and Magistrates' Courts. (a) R. S. of 1843, 527-534. (b) Ib. 535-540. |