Barnes v. Modisett

| Ind. | Jun 3, 1833

Stevens, J.

The facts in this case necessary to be noticed, are these: — On the 18th of "June, 1830, Charles B. Modisett, Enoch Bole, and James ■ Wolfe, made their promissory note in writing, payable to James Barnes, by the name and description of James Barnes, administrator of L. 'Franklin, deceased, by which they proinised to pay to said -Barnes, twelve months after the date thereof, the sum of 54 dollars a.nd 25 cents. After the note became due and payable, Barnes brought suit on it against the makers, before a justice of the peace, and on' the 1st day of November, 1831, recovered a judgment thereon against them for the amount of the note, interest, and costs: from which judgment the defendants appealed to the Circuit Court, and on the 29th day of November, 1831, filed their appeal-bond w.ith the justice of the-peace. Afterwards, on the 15th day of February, 1832, the transcript of the judgment and proceedings had in the case before the justice of the peace, together with the note and papers of the case, were filed in the clerk’s office of the Circuit Court.

Afterwards, at the first term of the Circuit Court after the filing of the transcript and papers, on the calling of the cause on the docket, Barnes, the plaintiff, moved to dismiss the appeal, because the transcript and papers had not been filed within twenty days after the appeal-bond was filed before the justice of the peace-, as is required by the statute; which motion,the Court overruled. The defendants then moved the Court to dismiss the action, of the plaintiff, for want of jurisdiction in the justice’s Court to hear and determine the same, because the plaintiff was an administrator; which motion the Court sustained and dismissed the action, and rendered judgment in favour of the" defendants for costs, &c.

J. Whitcomb, for the plaintiff. J. Farrington, for the defendants.

' The first question in this case is, whether the Circuit Court committed an error in dismissing the plaintiff’s action !

We think it did. This debt is due to the plaintiff in his personal capacity, and'not in auter droit, and he might have sued in his' own right, without describing himself administrator, &c., asid his having named himself administrator, &c., in the note .and in.the action, was surplusage, and should be rejected as such. 1 Blackf. 177" court="Ind." date_filed="1822-05-09" href="https://app.midpage.ai/document/moore-v-read-7029418?utm_source=webapp" opinion_id="7029418">1 Blackf. Rep. 177, note.—-Talmage, adm'r. v. Chapel, 16 Mass. 71.—Biddle, adm’r. v. Wilkins, 1 Pet., 686" court="SCOTUS" date_filed="1828-03-17" href="https://app.midpage.ai/document/biddle-v-wilkins-85613?utm_source=webapp" opinion_id="85613">1 Peters, 686. The motion to dismiss the action should have been overruled ⁽¹⁾.

The next question is, whether the Circuit Court should have dismissed the appeal as moved for by the plaintiff! '

We think the appeal must be dismissed. The 72d section of 'the act defining the powers and duties of justices of the peace, Rev. Code of 1831, requires that the transcript of the judgment and record of the justice of the peace, together with the cause of action, appeal-bond, and papers'of the case, shall be filed in the Circuit Court, within twenty days after the appeal-bond -is filed before the justice of the peace. In this case, more than twenty days had' elapsed before the transcript ■and papers were filed in the Circuit Court ⁽²⁾.

Per Curiam.

The judgment is reversed with- costs. Cause remanded, &c.

(1) Suits may now be brought in a justice’s Court, by executors or administrators, for causes of action arising in the time of their testators or intestates. See note to Simonds v. Colvert, Vol. 2, of these Rep. 413.

(2) Brown v. Modisett, May term, 1834, post, accord.