Burch v. Dooley
| Decision Date | 11 April 1890 |
| Docket Number | 14,074 |
| Citation | 24 N.E. 110,123 Ind. 288 |
| Parties | Burch v. Dooley et al |
| Court | Indiana Supreme Court |
From the Sullivan Circuit Court.
Judgment reversed, with costs.
J. C Briggs, for appellant.
W. S Maple, for appellees.
Samuel Burch sought to enjoin Dooley and another, constable and deputy constable, respectively, from proceeding to enforce the payment of certain costs alleged to have been wrongfully taxed against the plaintiff below by a justice of the peace. It is charged in a complaint, upon which the question for decision arises, that the appellant had been arrested and taken before a justice to answer a charge of assault and battery; that, after hearing the evidence, the justice found him not guilty of the charge, but instead of discharging him the justice directed the prosecuting attorney to prefer a charge against him for attempting to provoke an assault, which was accordingly done. It is averred that after taking a change of venue from the justice the appellant subsequently pleaded guilty to the latter charge, and that a fine of one dollar and costs was assessed against him, which he paid. It is averred that the justice charged the costs of the assault and battery case, including the witness' fees, with the costs in the proceeding for an attempt to provoke, and that although all the costs in the last named proceeding had been paid, an execution had been issued, and the appellant's property had been seized for the payment of the costs in the case in which he had been found not guilty. The court sustained a demurrer to the complaint.
It is insisted, in support of this ruling, that even though the justice may have erred in taxing the costs that accrued in the assault and battery proceeding against the appellant in the proceeding for an attempt to provoke an assault, yet the act of the justice in so doing was not void, but merely erroneous; and that, as the appellant had an adequate remedy by appeal from this latter judgment, he can not now avail himself of an extraordinary remedy by injunction. It was, of course, within the power of the justice, after finding that the evidence did not sustain the charge of assault and battery, in case it appeared to him that a mistake had been made in framing the charge, to detain the defendant in custody until a proper charge had been preferred; but he had no power to tax the costs that accrued in attempting to maintain a charge...
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