Mann v. Barkley

• Decision Date: 16 November 1898
• Docket Number: 2,561
• Parties: MANN v. BARKLEY
• Court: Indiana Appellate Court

51 N.E. 946

21 Ind.App. 152

MANN v. BARKLEY

No. 2,561

Court of Appeals of Indiana

November 16, 1898

From the Marion Superior Court.

Affirmed.

Thomas Hanna, for appellant.

R. W McBride and C. S. Denny, for appellee.

OPINION

BLACK J.

The appellee, as landlord, brought her action against appellant as tenant, before a justice of the peace, for possession of certain leased premises alleged to be unlawfully held over by the appellant after the expiration of the tenancy, and for damages for the detention. The justice rendered judgment for the appellee, adjudging that she should recover possession of the premises, with a certain sum of money and costs. From this judgment the appellant appealed to the court below, where it was ordered that the appellant within fifteen days file an additional bond in the sum of $ 200, with approved surety. On the 3d of April, 1897, the court, for failure of the appellant to comply with said order to file an additional bond, dismissed the appeal, and rendered judgment that the appellant take nothing by her appeal herein, and that the appellee recover her costs. On the 13th of April, 1897, the appellant filed her motion to set aside the judgment of dismissal and to reinstate the cause, and tendered her additional bond. In support of this motion the appellant filed a number of affidavits, and counter affidavits were filed by the appellee. The court overruled the appellant's motion to set aside its judgment of dismissal and to reinstate the cause. A motion of the appellant thereafter filed for a new trial was overruled. In this motion the appellant stated as causes for a new trial, (1) that the court erred in overruling her said motion to reinstate the cause; (2) that the complaint does not state facts sufficient to constitute a cause of action; (3) that the judgment of the court is contrary to law. In the assignment of errors are three specifications, (1) that the court erred in overruling the motion for a new trial; (2) that the complaint does not state facts sufficient to constitute a cause of action; (3) that the court erred in overruling appellant's motion to reinstate the cause, as is set out in the motion for a new trial. We may consider these specifications in their own order.

As to the second and third causes stated in the motion for a new trial, they must be disposed of by saying that neither of them constitutes a cause for a new trial recognized by law, in any case. The judgment of the court below which the appellant sought to set aside was not a judgment upon the merits of the cause, but was one of dismissal of an appeal from a justice of the peace. An appeal from a justice, not being for the correction of errors, but for the trial of the cause de novo upon its merits, vacates the judgment. Britton v. Fox, 39 Ind. 369. Among the general statutory provisions relating to justices of the peace, it is provided by section 1569, Burns' R. S. 1894 (1501, Horner's R. S. 1897), that the appeal shall not be dismissed for the insufficiency of the appeal bond, if the appellant will file a sufficient bond, to the acceptance of the court to which the appeal is taken. It is also provided by section 1572, Burns' R. S. 1894 (1504, Horner's R. S. 1897), "When an appeal is dismissed by the court, such fact shall be certified to the justice by the clerk, and such judgment stand on the justice's docket as if no appeal had been taken." For the removal of a tenant holding over special statutory provision is made. In such an action before a justice an appeal lies under the same regulations and restrictions as in other cases before justices, and appeal bonds securing damages, if any, and costs and the prosecution of the appeal must be given by the appellant. Section 7115, Burns' R. S. 1894 (5234, Horner's R. S. 1897). The appeal supersedes proceedings in the justice's court. But if judgment before the justice shall have gone for the plaintiff, and the defendant appeal and his appeal be dismissed, the clerk shall certify such dismissal to the justice, who shall issue process as if no appeal had been taken. Section 7116, Burns' R. S. 1894 (5235, Horner's R. S. 1897).

Here there was no trial...