Harbaugh v. Albertson
| Decision Date | 25 May 1885 |
| Docket Number | 12,123 |
| Citation | 1 N.E. 298,102 Ind. 69 |
| Parties | Harbaugh et al. v. Albertson |
| Court | Indiana Supreme Court |
From the Hamilton Circuit Court.
The judgment is reversed, with costs, and the cause is remanded with instructions to sustain the demurrer to the second paragraph of answer, and for further proceedings in accordance with this opinion.
L. O Clifford, J. A. Roberts and T. E. Boyd, for appellants.
W. Neal and J. F. Neal, for appellee.
The only error assigned by the appellants, the plaintiffs below upon the record of this cause, is the overruling of their demurrer to the second paragraph of appellee's answer.
It is necessary, we think, to a proper understanding of this case, and of the questions presented therein for decision, that we should first give a summary of the facts stated by the appellants, in their complaint, as constituting their cause of action against the appellee Albertson and his co-defendant, one George W. Harbaugh.
Appellants alleged that, on July 19th, 1883, in an action then pending before Samuel T. Dunham, Esq., a justice of the peace of Jackson township, in Hamilton county, wherein George W. Harbaugh was plaintiff and the appellants herein were defendants, George W. Harbaugh, having filed his affidavit and complaint in replevin, before such justice, also filed therein his bond with appellee Albertson as his surety therein, in substance, as follows:
And appellants alleged that such bond was then duly approved by such justice, and a writ of replevin was then duly issued to a constable of Jackson township, who, by virtue thereof, seized one hundred and fifty dozen sheaves of appellants' wheat, in the field and barn, and delivered the same to George W. Harbaugh; that such justice issued process, requiring appellants herein to appear before him, on July 25th, 1883, and answer such complaint in replevin, and such process was duly served on them; that on the day named the parties appeared before such justice, and, on appellants' application, the venue of the cause was changed from before him, and it was duly sent to another justice of the peace of such township, who was competent to try such cause; that before the latter justice, on August 10th, 1883, a trial of such cause was had, resulting in a judgment that George W. Harbaugh was entitled to such wheat; that, within the time allowed by law, the appellants herein duly appealed from the judgment of such justice to the Hamilton Circuit Court; that, at the November term, 1883, of such circuit court, such proceedings were had in such cause, as that it was dismissed by the court for the want of prosecution.
And the appellants averred that the defendants in this suit had not, nor had either of them, returned such wheat to the appellants, but that the defendant George W. Harbaugh had threshed such wheat and converted the same to his own use, to appellants' damage in the sum of $ 100, which sum the defendants had not paid, nor offered to pay to the appellants; that the proceedings in such replevin suit were wrongful and oppressive; and that the grounds of the replevin, alleged in the affidavit and complaint therein, were untrue as the plaintiff in that suit well knew; by reason of all which appellants were damaged $ 100. Wherefore, etc.
In the second paragraph of his separate answer to the foregoing complaint, the appellee Albertson alleged that the bond in suit was invalid and void, for the following reasons, namely: That such bond was executed in a pretended legal proceeding before Samuel T. Dunham, a justice of the peace of Hamilton county, and that all the parties to such proceedings, both plaintiff and defendants, were related to such justice of the peace, within the sixth degree of consanguinity; and such justice attempted to take and approve such bond, notwithstanding the relationship so existing between him, such justice, and the parties to such pretended suit.
The question for decision in the case may be thus stated: Are the facts alleged in the foregoing answer, and admitted to be true by the demurrer, sufficient in law to constitute a good defence, in appellee's favor, in bar of the appellant's action? We are of opinion that this question must be decided in the negative. The paragraph of answer proceeds upon the theory that the justice of the peace before whom the action of replevin was commenced, by reason of his relationship by blood to the parties to such suit, had no jurisdiction of the cause, and that the replevin bond, taken and approved by such justice in such cause, was therefore invalid and void. It may be conceded that such justice of the peace, by reason of his alleged relationship to the parties to such action of replevin, had not and could not acquire jurisdiction of the persons of such parties. Section 1433, R. S. 1881. But it by no means follows from this concession that such justice did not have full and complete jurisdiction of the subject-matter of such action of replevin, and might not, therefore, take and approve such replevin bond therein. In the case under consideration, there is no pretence that the justice of the peace, before whom such action of replevin was commenced, did not have full and complete jurisdiction of the...
To continue reading
Request your trial