Milholland v. Pence
| Decision Date | 03 December 1858 |
| Citation | 11 Ind. 168 |
| Parties | Milholland v. Pence |
| Court | Indiana Supreme Court |
From the Warren Court of Common Pleas.
The judgment is reversed with costs. Cause remanded.
B. F Gregory and J. Harper, for appellant.
R. A Chandler, for appellee.
The appellant, who was the plaintiff, sued Pence before a justice of the peace. The following is the cause of action:
The justice gave judgment for the plaintiff. In the Common Pleas, to which the cause was taken by appeal, the defendant moved to dismiss the suit for want of a complaint. Pending this motion, the plaintiff moved for leave to amend the cause of action. The Court refused to allow the amendment, and sustained the motion to dismiss. In support of these rulings, it is insisted that in civil cases before a justice, there should be a regular complaint and that the plaintiff, in this instance, having filed no such pleading, either in substance or form, there was, consequently, nothing to amend, and the suit was properly dismissed.
The code very distinctly points out the requirements of a complaint. 2 R. S. p. 37, § 49. And the act in relation to proceedings before justice, says that, "In all cases not in this act otherwise specially provided, such proceedings shall be governed by the practice and usages of Circuit Courts," &c. Id. p. 465, § 75. These enactments evidently favor the position assumed by the appellee; and unless the act to which we have referred is found to have some special provision which makes the filing of a regular complaint unnecessary, the ruling must be sustained. But, in addition, we are referred to section 32 of the same act, which declares that "All forms of action heretofore known by distinct names are abolished, and but one form of action, to be called a complaint, shall be used," &c. Id. p. 455. This section seems to have no effective bearing upon the question under consideration. It simply gives a name to the action to be used before justices, and does not assume to point out the necessary requirements of a pleading.
There is, however, in that act, another provision, which seems to have special reference to the statement of the cause of action in justices' Courts. Section 35 says: "In all suits commenced by summons, the plaintiff shall, three days before the return day of the writ, file with the justice a statement of the grounds of his complaint, or the...
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