The Ohio and Mississippi Railroad Co. v. Hanna
| Decision Date | 12 June 1861 |
| Citation | 16 Ind. 391 |
| Parties | The Ohio and Mississippi Railroad Co. v. Hanna |
| Court | Indiana Supreme Court |
APPEAL from the Ripley Common Pleas.
The judgment is reversed, with costs. Cause remanded for further proceedings, in accordance with this opinion.
T. Gazlay, for the appellant.
Hanna sued the Ohio and Mississippi Railroad Co., before a justice of the peace, to recover the value of a cow killed on the road by a locomotive. The summons was issued November 21, 1859, returnable, December 23, 1859, and served November 21, 1859. Judgment by default, before the justice, December 23, 1859. The defendant appealed to the Ripley Common Pleas, and there, at the proper time, moved that the cause be dismissed for defects in the writ and service; which motion was overruled.
The Court of a justice of the peace is one of special limited jurisdiction, which acts by virtue of statutory power, and whose acts, to be valid, must be authorized by statute. See the cases collected in Ind. Dig., p. 343; Willey v. Strickland, 8 Ind. 453; 9 id. 212. The statute does not authorize a justice of the peace to issue a writ, in a civil cause, running more than thirty days before return. The Michigan, &c. Co. v. Shannon, 13 Ind. 171. The writ in this case was therefore void, and no notice to the defendant. It was operative for no purpose whatever. It did not effect the commencement of a suit. There was, therefore, no action pending against the railroad company, and the motion to dismiss the proceedings, made in the Common Pleas, should have been sustained.
The case at bar differs from that of the Michigan, &c. Co. v. Shannon, supra, in this: that in the latter case the writ was legal, and so was the service, but the default was prematurely taken. The defendant was rightly in Court, and the irregularity was in the rendition of judgment. In the case now before us, the writ was void, the service irregular, and, hence, the defendant was never legally in Court. No step could be taken against him, unless he saw fit to waive process and service, and voluntarily appear. That he did not do.
The judgment is reversed, with costs. Cause remanded for further proceedings, in accordance with this opinion.
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Emery v. Royal
... ... 221; ... Richards v. Reed, 39 Ind. 330; [117 Ind ... 303] Ohio, etc., R. R. Co. v. Hanna, 16 ... Ind. 391; Willey v. Strickland, 8 Ind ... ...
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Todd v. Gates
... ... court of the county of Ohio, rendered on the 2d day of May, ... 1881, in an action at law in the said ... statute. The O. & M. R. R. Co. v ... Hanna, 16 Ind. 391; Pendleton v. Fowler, 6 Ark ... Our ... ...
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Davis v. D.M. Osborne & Co.
...a. m. he served on the defendants the writ, whereby they were commanded to appear at 9 o'clock a. m. of the same day. In Railroad Co. v. Hanna, 16 Ind. 391, and in Fuller v. Railroad Co., 18 Ind. 91, it was held that a justice's summons running more than 30 days before return was a nullity.......
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Davis v. D. M. Osborn & Company
...etc., R. Co., 18 Ind. 91, it was held that a justice's summons, running more than thirty days before return, was a nullity. In the Hanna case, the court said: "The writ in this case therefore void, and no notice to the defendant. It was operative for no purpose whatever. It did not effect t......