Bernhamer v. Conard

45 Ind. 151 | Ind. | 1873

Pettit, J.

This suit was brought by the appellee against the appellant before a justice of the peace, and this was the complaint:

“ Charles P. Conard complains of William F. A. Bernhamer, defendant, and says, that the defendant is indebted to the plaintiff in the sum of seventy dollars on a settlement, as is more particularly set forth in a bill of items filed herewith and made a part hereof; that said bill is wholly due and unpaid; wherefore plaintiff asks judgment for seventy dollars and all other proper relief.”

Bill of particulars filed with the complaint:

“Indianapolis, Sept. 2d, 1870.

“Mr. William F. A. Bernhamer to C. P. Conard Dr. 1870, August 22d, to settlement for breakage of buggy, harness, and buggy hire, seventy dollars.”

The defendant answered in four paragraphs:

1. The general denial.

2. That the defendant was a bailee of the buggy and harness for hire; that he properly used the same, and the damage and injury thereto was done and happened without his fault, etc.

3. That he was indebted to plaintiff for the hire and use of buggy and harness in the sum of two dollars and fifty cents, and made a tender of that amount.

4. Want of consideration.

There was a trial before the justice which resulted in a judgment for the plaintiff. An appeal was taken to the circuit court, where a demurrer for want of sufficient facts was filed and sustained to the second, third, and fourth paragraphs of the answer. There was no error in this ruling. The complaint was on a settlement; and neither of these paragraphs of the answer responds to or denies the settlement. But if either was good, no injury was done to the defendant by sustaining a demurrer to it; for the case was commenced before a justice of the peace, and these paragraphs did not present the question of the statute of limitations, set-off, or any matter in abatement; and all other matters may be given in evidence under the general denial, or without a plea, before a justice of the peace. 2 G. & H. 585, sec. 34. And on appeal the case is to be tried under the same rules. 2 G. & H. 596, sec. 67.

It is claimed that the complaint is insufficient to justify a judgment. We have set it out above, and we think it was not only good for a justice’s court, but that it would be good in a higher court of record.

The complaint asked judgment for “seventy dollars, and all proper relief.’’ The judgment was for seventy-four dollars and twenty cents. No objection was made to the amount of the judgment, but if there had been, it would not be available here, as the court had a right to add interest on a debt long delayed in payment.

The evidence is not in the record, and we cannot act on questions sought to be raised on it. We entertain no doubt that justice has been done between the parties, so far as we can see by the record, and that this case has been brought here for delay merely.

The judgment is affirmed, at the costs of the appellant, with ten per cent, damages.