New actions; continuation of action
Sec. 1. (a) This section applies if a plaintiff commences an action
and:
(1) the plaintiff fails in the action from any cause except
negligence in the prosecution of the action;
(2) the action abates or is defeated by the death of a party; or
(3) a judgment is arrested or reversed on appeal.
(b) If subsection (a) applies, a new action may be brought not later
than the later of:
(1) three (3) years after the date of the determination under
subsection (a); or
(2) the last date an action could have been commenced under
the statute of limitations governing the original action;
and be considered a continuation of the original action commenced
by the plaintiff.
As added by P.L.1-1998, SEC.6. Amended by P.L.2-2005, SEC.113.
&DNM.IC 34-55-8
&YENC.
&YAMD.
Chapter 8. Proceedings Supplementary to Execution
&DNM.IC 34-55-8-1
&YENC.1998
&YAMD.1998
Unsatisfied execution; order requiring judgment debtor to appear
IC 34-55-8-1 Sec. 1. If an execution against the property of the
judgment debtor or any of several debtors in the same judgment is
returned unsatisfied, in whole or in part, the judgment creditor, after
the return is made, is entitled to an order to be issued by any circuit,
superior, or city court in the jurisdiction to which the execution issued
that requires the judgment debtor to appear before the court to answer
concerning the judgment debtor's property, income, and profits within
the county to which the execution was issued.
&HST.As added by P.L.1-1998, SEC.51.&EHST.
&DNM.IC 34-55-8-2
&YENC.1998
&YAMD.1998
Refusal of judgment debtor to apply assets to judgment; order requiring
IC 34-55-8-2 Sec. 2. (a) If, after the issuing of an execution against
property, the execution plaintiff or other person on the execution
plaintiff's behalf makes and files with the clerk of any court of record
of any city, county, or township an affidavit:
(1) stating to the effect that a judgment debtor, residing in the
territorial jurisdiction of the court, has property, income, or profits
that the judgment debtor unjustly refuses to apply toward the
satisfaction of the judgment; and
(2) describing the property, income, or profits;
the court shall issue a subpoena requiring the judgment debtor to
appear immediately before the court, at a specified time and place, to
answer concerning the affidavit.
(b) Proceedings described in subsection (a) may subsequently be
held for the application of the property, income, or profits of the
judgment debtor toward the satisfaction of the judgment as provided
upon the return of an execution.
&HST.As added by P.L.1-1998, SEC.51.&EHST.
&DNM.IC 34-55-8-3
&YENC.1998
&YAMD.1998
Arrest of debtor authorized
IC 34-55-8-3 Sec. 3. When the plaintiff or the plaintiff's agent or
attorney, at the time of applying for the order or at any time afterwards,
makes and files an affidavit with the court, stating that:
(1) there is danger of the debtor leaving the state or concealing
himself or herself; and
(2) there is reason to believe the debtor has property, rights,
credits, moneys, or effects that the debtor unjustly refuses to apply
to the judgment, with intent to defraud the creditor;
the court shall issue to the sheriff of the county an order of arrest and
bail.
&HST.As added by P.L.1-1998, SEC.51.&EHST.
&DNM.IC 34-55-8-4
&YENC.1998
&YAMD.1998
Arrest of debtor; bond
IC 34-55-8-4 Sec. 4. The sheriff, after taking the execution debtor
into custody upon the order of arrest, shall require the execution debtor
to enter into a written undertaking to the plaintiff, with surety, to be
approved by the officer, that:
(1) the execution debtor will attend before the court and obey the
order made by the court; and
(2) the execution debtor will not, in the meantime, dispose of any
part of the execution debtor's property that is not exempt from
execution.
If the execution debtor defaults on the written undertaking, the
execution debtor shall be committed to prison. Upon breach of the
written undertaking, the plaintiff is entitled to the amount of the value
of the property unlawfully withheld or disposed of.
&HST.As added by P.L.1-1998, SEC.51.&EHST.
&DNM.IC 34-55-8-5
&YENC.1998
&YAMD.1998
Third parties; when required to appear
IC 34-55-8-5 Sec. 5. (a) Except as provided in subsections (b) and
(c):
(1) after the issuing or return of an execution against the property
of the judgment debtor or any one (1) of the several debtors in the
same judgment; and
(2) upon an affidavit that any person, corporation (municipal or
otherwise), the state, or any subdivision or agency of the state:
(A) has property of the judgment debtor; or
(B) is or will be periodically indebted to the judgment debtor
in any amount (although the amount shall be determined
periodically as it becomes due and payable, which together
with other property claimed by the judgment debtor as exempt
from execution, exceeds the amount of property exempt by
law);
such person, corporation, any member of the corporation, the
auditor of state, or auditing officer of the municipal corporations,
subdivisions, or agencies of the state may be required to appear
and answer concerning the affidavit, as provided by this chapter.
(b) The persons described in this section shall not be required to
appear personally in court unless the judge of the court orders their
personal appearance.
(c) The court may order interrogatories to be submitted and the
interrogatories to be answered by the persons described in subsection
(a). The interrogatories shall be submitted by the parties. The clerk of
the court shall transmit by registered mail a copy of:
(1) the interrogatories, with blanks for answer; and
(2) the order of the court ordering the interrogatories answered;
to the person, corporation, member of the corporation, the auditor of
state, or the auditing officer of the municipal corporations,
subdivisions, or agencies of the state required to answer the
interrogatories. On receipt of the interrogatories and order, the person,
corporation, member of the corporation, auditor of state, or the auditing
officer of the municipal corporations, subdivisions, or agencies of the
state shall answer the interrogatories and return the interrogatories to
the clerk by registered mail or personally. The court may compel
answers to the interrogatories.
&HST.As added by P.L.1-1998, SEC.51.&EHST.
&DNM.IC 34-55-8-6
&YENC.1998
&YAMD.1998
Witnesses
IC 34-55-8-6 Sec. 6. (a) Witnesses may be required to appear and
testify in the proceeding provided for in this chapter.
(b) Either party may examine the other as a witness in the same
manner as upon the trial of an issue, or the plaintiff may waive the
answer of the debtor and rely upon other testimony.
(c) All examinations and answers under this section shall be made
on the oath of the party. However, when a corporation answers, the
answers shall be on the oath of an officer of the corporation.
&HST.As added by P.L.1-1998, SEC.51.&EHST.
&DNM.IC 34-55-8-7
&YENC.1998
&YAMD.1999
Order requiring application of property to debt and forbidding transfer;
liens; order for placing hold on deposit account; hearing; order
releasing hold
IC 34-55-8-7 Sec. 7. (a) After a hearing of which the judgment
debtor has been notified, the court may order:
(1) any property, income, or profits of the judgment debtor not
exempt from execution or process, in the hands either of the
judgment debtor or of any other person; or
(2) any debt due to the judgment debtor;
to be applied to the satisfaction of the judgment and forbid transfers of
property and choses in action.
(b) The judge may order that:
(1) the judgment or execution is a continuing lien upon the
income or profits of the judgment debtor in the hands either of the
judgment debtor or any other person, governmental officer, or
corporation from the date the order is served upon the person,
governmental officer, or corporation indebted to the judgment
debtor to the extent that the lien, together with all similar liens, is
permitted under IC 24-4.5-5-105; and
(2) the court may enforce all orders and decrees in the premises,
by attachment or otherwise.
(c) A court in an action for proceedings supplementary to execution
shall issue an order directing a depository financial institution (as
defined in IC 28-9-2) to place a hold on a deposit account in which the
judgment debtor has an interest, either individually or jointly with
another person, whenever the conditions prescribed under IC
28-9-3-4(d)(1) through IC 28-9-3-4(d)(3) are met. An order issued
under:
(1) is subject to the limitations as to duration of the restriction and
the amount to be restricted as specified under IC 28-9-4-2; and
(2) may be terminated or modified to reflect valid exemptions of
a depositor that the court has considered.
(d) If an order for the placing of a hold on a deposit account is
issued under subsection (c), a person whose deposit account is affected
may request a hearing from the court on the matter of:
(1) the person's right to claim certain funds in the person's deposit
account as exempt from garnishment; and
(2) whether the hold should be removed by the court.
(e) If a court receives a request for a hearing under subsection (d),
the court shall hold a hearing on the matter within five (5) days
(excluding Saturdays, Sundays, and legal holidays) after the court
receives the request.
(f) If a person whose deposit account is affected by the order issued
under subsection (c) files an affidavit with the court stating that the
funds in the account are exempt from garnishment, the court may issue
an order releasing the hold on the account without first conducting a
hearing.
&HST.As added by P.L.1-1998, SEC.51. Amended by P.L.1-1999,
SEC.76.&EHST.
&DNM.IC 34-55-8-8
&YENC.1998
&YAMD.1998
Cost of proceedings
IC 34-55-8-8 Sec. 8. Costs shall be awarded and taxed in a
proceeding under this chapter as in other cases.
&HST.As added by P.L.1-1998, SEC.51.&EHST.
&DNM.IC 34-55-8-9
&YENC.1998
&YAMD.1998
Proceedings to be summary
IC 34-55-8-9 Sec. 9. All proceedings under this chapter, after the
order has been made requiring parties to appear and answer, shall be
summary, without further pleadings, upon the oral examination and
testimony of parties and witnesses. However, the sufficiency of the
order and of the affidavit first filed by the plaintiff may be tested by:
(1) demurrer;
(2) motion to dismiss; or
(3) motion to strike.
&HST.As added by P.L.1-1998, SEC.51.&EHST.
Last modified: May 24, 2006