Emery v. Royal

• Decision Date: 12 February 1889
• Docket Number: 13,596
• Citation: 20 N.E. 150,117 Ind. 299
• Parties: Emery et al. v. Royal
• Court: Indiana Supreme Court

20 N.E. 150

117 Ind. 299

Emery et al. v. Royal

No. 13,596

Supreme Court of Indiana

February 12, 1889

From the Greene Circuit Court.

The judgment is reversed, with costs, and the court directed to sustain the demurrer to the complaint.

J. D Alexander, H. W. Letsinger, A. G. Cavins, E. H. C. Cavins and W. L. Cavins, for appellants.

W. W Moffett and C. E. Davis, for appellee.

OPINION

Berkshire, J.

The appellee recovered judgment in the court below for $ 90.50.

There are several errors assigned.

The first and only one which we shall consider is, that the court erred in overruling the demurrer to the complaint. The complaint is in two paragraphs.

The following is the substance of the first paragraph: The appellant Emery was a justice of the peace in Jackson township, Greene county, Indiana, and the other appellants sureties on his official bond; that an action was commenced by one Dukes against one Hamblin before said justice together with attachment proceedings, and that the appellee and one Fry were summoned as garnishees; that such proceedings were had before said justice that, on the 5th day of July, 1881, judgment was rendered against said Hamblin for $ 37 and costs, in all $ 50, and against the appellee and Fry for $ 51; that the judgment against appellee and Fry was upon a note which they had executed to one Crow, and which the said justice in said action determined to be the property of the said Hamblin; that the appellee was the principal in said note and Fry his surety; that, as principal, he paid the said judgment in full against Fry and himself to said justice; that said justice wholly failed to enter the said judgment against appellee and Fry upon his docket, and the evidence thereof was not preserved for appellee's protection; that the said note afterwards came into the hands of a firm known as McKee Bros., who brought suit thereon against the appellee and said Fry; that the appellee, being unable to read writing, was ignorant of the fact that said judgment had not been recorded; that because of the failure of said justice to make a record of said judgment so rendered against the appellee, he was without evidence thereof, and because of such want of evidence the McKees recovered a judgment against him for $ 72, including costs, and he was compelled to pay $ 20 attorney fees in defence of said action; that he notified the appellants that he intended to sue them upon the official bond of said justice because of said breach of duty by the said justice, unless speedy compensation was made to him; that the appellants asked for time to consider the matter before deciding as to what they would do, to which the appellee assented; that afterwards the appellants notified the appellee that they had had a consultation, and taken the advice of counsel, and were willing to pay to him an amount equal to the judgment, including costs, recovered by the McKees, and $ 15 of the amount expended by him in the employment of counsel to defend said action, in all $ 92.50, if he would abandon his right of action on said bond and refrain from bringing suit; that he accepted said proposition, abandoned his right of action, and did not institute said suit.

The second paragraph is substantially like the first, with some additional allegations. It alleges that the said justice informed the appellee that he had rendered judgment against said Hamblin, Fry and the appellee, in favor of said Dukes, for the full amount of said note--$ 51; that in this statement the said justice made a mistake; that he had rendered no judgment against the appellee and Fry; that the appellee being unable to read, and knowing that the said justice usually entered his judgments on his docket, did not examine the same, but relied on what the justice told him, and, acting upon the mistaken impression thus formed, and being the principal in the said note, paid to the said justice for said Dukes, on said supposed judgment, said sum of $ 51, on the day of September, 1881, and that said justice, acting under the impression that he had rendered said judgment, accepted and received said money as payment on said supposed judgment; that the appellee did not discover that said judgment had not been recorded until after the McKees sued him on said note, in which action they recovered a judgment against him, which, together with his attorney's fees, amounted to $ 94.

The demurrer is not separate to each paragraph, but is a demurrer to the whole complaint, the cause of demurrer being that the complaint does not state facts sufficient to constitute a cause of action.

In this instance the form of the demurrer does not become material, because if one paragraph of the complaint is bad the other is necessarily so.

This action is not brought on the official bond of the justice, but is grounded upon an agreement of compromise which it is claimed the parties entered into.

The first question that presents itself is, whether the allegations of the complaint show the appellee to have been the holder of such a claim or demand, the release or abandonment of which afforded to the appellants a valuable consideration for the obligation which it is averred they entered into; if not, then the complaint was bad, and the court should have sustained the demurrer thereto.

Justices courts are courts of limited and inferior jurisdiction; this is well settled in Indiana, and probably in all of the other States. In Indiana they have only such jurisdiction as the statute gives to them, and in each case facts necessary to jurisdiction must affirmatively appear. Newman v. Manning, 89 Ind. 422; Wilkinson v. Moore, 79 Ind. 397; Hopper v. Lucas, 86 Ind. 43; Doctor v. Hartman, 74 Ind. 221; Richards v. Reed, 39 Ind. 330; Ohio, etc., R. R. Co. v. Hanna, 16 Ind. 391; Willey v. Strickland, 8 Ind. 453; Hollingsworth v. Stone, 90 Ind. 244.

Section 1489, R. S. 1881, reads as follows: "When a suit shall be dismissed, judgment confessed, the verdict of a jury returned, or the defendant be in actual custody, judgment shall be entered and signed immediately; in all other cases judgment shall be entered and signed within four days after the trial."

It is only by his record that the justice speaks; he may announce his conclusion, but until that conclusion is entered upon his docket and his signature affixed thereto, there is no judgment. Board, etc., v. Cutler, 7 Ind. 6; Rugle v. Weston, 23 Ind. 588; Galbraith v. Sidener, 28 Ind. 142.

The complaint alleges that Justice Emery rendered a judgment against the appellee and Fry as garnishees but failed to record it. The allegation is self-destructive.

The averments in the complaint disclose the fact that the justice did not render a judgment against Fry and the appellee. And the facts as disclosed by the complaint further show, that had the justice rendered a judgment against the garnishees, his action would have been without authority of law and void.

Section 936, R. S. 1881, reads as follows: "Final judgment shall not be rendered against the garnishee until the action against the defendant in attachment is determined; and if the plaintiff fails to recover judgment either against the defendant or the garnishee, the garnishee shall be discharged and recover his costs."

From our understanding of the complaint, there was no judgment rendered by the justice in the attachment proceedings against the principal defendant.

As we understand the first paragraph of the complaint, the judgment that was rendered against Hamblin was a personal judgment.

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