APPEAL FROM THE HAMILTON CIRCUIT COURT, The Honorable Judith S. Proffitt, Judge, Cause No. C84-205.
Buchanan, J., Sullivan, J., Concurs, Miller, P.j., Concurs.
The appellants-defendants Ronald P. Schwedland, Charlotte G. Schwedland, and Village Square Knits, Inc. [hereinafter collectively referred to as the Schwedlands] bring this interlocutory appeal under Ind. Rules of Procedure, Appellate Rule 4(B)(1), claiming that the trial court's order authorizing the appellees-plaintiffs Charles A. Bachman and Donna M. Bachman d/b/a Village Square Knits [hereinafter collectively referred to as the Bachmans] to deposit a tendered check in the amount of $18,500.00 with the court pending a final decision on the merits, is contrary to law.
The relevant facts are that the Schwedlands signed a promissory note on October 20, 1976, for the purchase of the Bachmans' unincorporated business, whereby the Schwedlands promised to pay the Bachmans, in installments, $184,000.00 plus interest. The Schwedlands made their monthly payments until June 1, 1980, after which the payments ceased. The Bachmans filed a complaint on January 5, 1984, asking for the unpaid balance of approximately $105,833.00 plus interest, attorneys fees, and costs.
In April of 1984, the parties' attorneys discussed settlement and purportedly reached an oral settlement agreement, with the Schwedlands agreeing to pay the Bachmans $18,500.00 from the proceeds of the sale of their house in return for dismissal of the Bachman's suit against them. The parties now dispute the agreed time period in which the house had to be sold and the proceeds turned over to the Bachmans. Nonetheless, a written settlement agreement was never signed by the parties.
On December 3, 1985, the Bachman's filed an amended complaint requesting prejudgment attachment of the Schwedlands's assets because the Schwedlands were no longer residents of Indiana. On January 21, 1986, the trial court entered an order of attachment as follows:
"ORDER OF ATTACHMENT AND APPROVAL OF BOND
This cause comes before the Court on plaintiffs' Amended Complaint. The plaintiffs have submitted a written undertaking in the amount of One Hundred Thirty-Three Thousand Dollars ($133,000.00). Having investigated the truth of the averments, the Court now finds that:
1. Plaintiffs' Amended Complaint states a claim for relief.
2. There is probable cause to believe that the defendants Schwedland [sic] have left the State of Indiana, that the defendant Village Square Knits, Inc. has no assets and that unless the Court orders prejudgment attachment, plaintiffs will be unable to enforce any judgment which may be granted by this Court.
3. Attachment without notice to defendants appears necessary on the ground that prior notice might well result in the Disposition and/or transfer of the real estate and improvements, being the only assets available to satisfy plaintiffs' claim.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that:
1. The Sheriff of Hamilton County, Indiana, take those steps necessary to cause the Sheriff of Marion County, Indiana, to seize and hold the property of defendants not exempt from execution or so much thereof as will satisfy plaintiffs' claim for One Hundred Thirty-Two Thousand Eight Hundred Four Dollars and Eighty-One Cents ($132,804.81) plus reasonable attorneys' fees:
Lots Numbered 67 and 68 in Wynnedale, now in the Town of Wynnedale, in Marion County, Indiana, as per plat thereof, recorded in Plat Book 20, pages 27 and 28, in the Office of the Recorder of Marion County, Indiana, more commonly known and described as 2125 Wilshire Road, Indianapolis, Indiana, pending the trial and determination of this action.
2. In executing this Order, the Sheriff of Hamilton County shall cause the Sheriff of Marion County to take first defendants' personal property; if enough thereof is not found to satisfy plaintiffs' ...