Bensch v. Farnsworth

• Decision Date: 21 September 1893
• Docket Number: 718
• Citation: 34 N.E. 751,9 Ind.App. 547
• Parties: BENSCH v. FARNSWORTH
• Court: Indiana Appellate Court

34 N.E. 751

9 Ind.App. 547

BENSCH v. FARNSWORTH

No. 718

Court of Appeals of Indiana

September 21, 1893

Reported at: 9 Ind.App. 547 at 550.

From the Lake Circuit Court.

Judgment affirmed, with costs.

P Crumpacker, for appellant.

E. A Rosenthal, C. H. Worden, J. Morris, G. W. Galvin and W. A. Reading, for appellee.

OPINION

GAVIN, C. J.

Appellee brought suit in replevin before a justice of the peace.

In his complaint he alleged the value of the property to be $ 200, and claimed $ 50 damages in addition, making the entire amount involved, therefore, $ 250, which was conceded to be in excess of the amount over which a justice has jurisdiction.

Before the trial in the justice's court, appellee, by leave of court, amended his complaint so as to omit the claim for damages and bring the amount within the justice's jurisdiction. In this there was no error. It accords with the liberal spirit of our code to permit such an amendment rather than to dismiss the cause and require the plaintiff to refile his complaint.

By this amendment the character of the action was in no manner changed, but the amount in controversy simply reduced. The action of the court is in harmony with the decisions of our Supreme Court in Brown v. Lewis, 10 Ind. 232, and Harvey v. Ferguson, 10 Ind. 393.

We do not believe these cases were overruled by the case of Kiphart v. Brennemen, 25 Ind. 152, where the court held that after a complaint had been filed before the justice as a complaint in ejectment, the cause tried and appealed to the circuit court, the plaintiff could not then claim the right to amend his complaint so as to make it for forcible entry and detainer, and thus bring it within the jurisdiction of the justice.

Here the amendment was made in the justice's court, and not after the cause had passed from that court, as in the Kiphart case.

The only reason presented for a new trial is: "Error of law occurring at the trial, and excepted to by said defendants, in this: That the court refused to permit the defendants, and each of them, to introduce in evidence the papers, proceedings, and judgment in the case of Beusch v. Farnsworth, and to prove in connection therewith in response to proper questions, that the plaintiff herein had actually litigated with the defendant Bensch in said action as to the title and possession of the identical property in suit."

The bill of exceptions does not purport to contain all the evidence, but simply a part thereof, it being the aim of the parties to present the question under section 630, R. S. 1881.

For this purpose, it is not necessary that all the evidence should be in the record, but it is necessary that "the evidence given or proposed touching the point in question should have been set out in the bill of exceptions." Indiana, etc., R. W. Co. v. Adams, 112 Ind. 302, 14 N.E. 80.

While this statute authorizes a party to bring a question before this court upon a part of the record only, it is, nevertheless, incumbent upon him to bring before this court, in proper manner, all that is necessary to make it affirmatively appear that there was error in the action of the court below. Indiana, etc., R. W. Co. v. Adams, supra; Starry v. Wining, 7 Ind. 311.

In Shugart v. Miles, 125 Ind. 445, 25 N.E 551, where the question was presented in the same manner as here, it is said that the record must be so made up as to "make it affirmatively...