Davis v. D.M. Osborne & Co.

• Citation: 156 Ind. 86,59 N.E. 279
• Parties: DAVIS et al. v. D. M. OSBORNE & CO. et al.
• Decision Date: 25 January 1901
• Court: Indiana Supreme Court

156 Ind. 86

59 N.E. 279

DAVIS et al.

v.D. M. OSBORNE & CO. et al.

Supreme Court of Indiana.

Jan. 25, 1901.

Appeal from circuit court, Harrison county; C. W. Cook, Judge.

Suit by Robert N. Davis and others against D. M. Osborn & Co. and others to enjoin the enforcement of a judgment. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

Major Funk and N. R. Peckinpaugh, for appellants. E. D. Mitchell, for appellees.

BAKER, J.

Suit by appellants to enjoin appellees from enforcing an alleged judgment rendered by a justice of the peace against appellants and in favor of appellee D. M. Osborn & Co. Complaint in two paragraphs. Demurrers to each paragraph for want of facts were sustained. On appellants' refusal to amend, judgment for appellees was rendered. The assignments of error question the correctness of the court's rulings on the demurrers. Both paragraphs of complaint count on the same cause of action. Inasmuch as the first paragraph does not set forth the facts as fully as the second, the latter alone will be considered. The facts are alleged to be these: On July 12, 1898, appellee D. M. Osborn & Co., a corporation, filed with Jasper N. Brown, a justice of the peace of Taylor township, Harrison county, Ind., a complaint against appellants on an account for $163.52. Thereupon the justice issued the following summons: “State of Indiana, Harrison county-ss.: To Any Constable of Taylor Township: You are hereby commanded to summon Robert N. Davis and James N. Davis to appear before me at my office on the 13th day of July, 1898, at nine o'clock in the forenoon, to answer D. M. Osborn & Company in a complaint wherein they claim the sum of $163.52, and return then and there this writ. Dated this 12th day of July, 1898. Jasper N. Brown, Justice. [Seal.]” The constable made the following return: “Came to hand 13th day of July, 1898. Served July 13th at 7 o'clock a. m. by reading to one defendant and copy to other. Cyrus A. Brown, Constable.” The writ was read on the morning of July 13th to appellant James N. Davis. Appellant Robert N. Davis was absent in Kentucky from July 12th to July 14th, inclusive, and a copy of the writ was left at his residence. A writ of attachment was also issued, and a quantity of wheat was seized as the property of appellants. The proceedings on July 13th took place as inscribed on the justice's docket: “July the 13th. The constable returned the summons and subpœna, indorsed served by reading to one of defendants, and by copy on the other. The subpœna was indorsed served by reading to all the witnesses. The writ of attachment was indorsed served by seizing the property and placing it in the hands of a special guard named James Tilly. The time set for trial having arrived, and the plaintiffs announcing themselves ready, the plaintiffs' attorney proceeded to examine the following witnesses [naming five persons, none of whom was a party to the action], and rested. The defendant James N. Davis, being present, made no defense to account and complaint filed, but said he supposed it was all right, but could not say for sure, because he did not have his account book with him. He, however, being sworn, took the stand, and stated that he had no property in the wheat attached, but had sold it before the writ of attachment was issued. After hearing all the evidence offered, and the admission of one of the defendants, the court finds that $163.52 should be allowed the plaintiffs. It is therefore adjudged by this court that the plaintiffs recover of the defendants the sum of $163.52, with all their costs and accruing costs.” On July 16th appellants filed a motion for a new trial with the justice, which he overruled on July 23d.

This suit for an injunction is a collateral attack, and cannot be sustained unless the alleged judgment is an absolute nullity. The subject-matter was within the jurisdiction of the justice. But the appellants contend that the justice never acquired jurisdiction of their persons. A justice cannot have jurisdiction over the person of a defendant unless an action has been properly instituted and is pending in his court. Sections 1450, 1451, Rev. St. 1881 (sections 1450, 1451, Horner's Rev. St. 1897; sections 1518, ...