3 Ind. 398 | Ind. | 1852
Wells, in October, 1850, brought an action of trespass de bonis asportatis against Dawson and Dilts. The defendants pleaded not guilty. The cause was afterwards, at the October term, 1850, tried, and a verdict and judgment rendered for the plaintiff.
The defendants, Dilts and Dawson, are, and have been for many years, brothers-in-law, and were so on the 8th of January, 1850; which fact was known to them both, and to said Wells. Dawson was a justice of the peace; and, on said 8th of January, 1850, Dilts commenced a suit before Dawson, as such justice, against said Wells, on a promissory note. The process issued by said'justice was duly served; but Wells failed to appear to the suit, and judgment was rendered against him by default. Dilts, afterwards, caused said justice to issue a fieri facias on said judgment, and, under that execution, certain goods of Wells were taken and sold.
The present suit is for the taking of those goods. The said judgment-plaintiff, and the justice, are the defendants.
The main question to be decided is, whether or not the justice who issued the execution under which Wells's goods were sold, had jurisdiction of the cause ?
The statute says, that no justice of the peace shall have cognizance of any action by or against any person or persons with whom he may be related in any of the degrees of affinity or consanguinity. R. S. p. 863. By this statute, justice Dawson, as the brother-in-law of Dilts, had no jurisdiction of the cause; and his judgment is coram non judice and void. This opinion is in accordance with a decision in Vermont under a statute similar to ours. Hill v. Wait, 5 Vermont Rep. 124.
The judgment of the justice being absolutely void, he and the judgment-plaintiff are liable in trespass de bonis asportatis to the party whose goods were sold under the execution.
The Court, on the plaintiff’s motion, instructed the jury as to the law governing the case. The instruction is in accordance with the opinion' we have above expressed, and is unobjectionable.
Some instructions asked for by the defendants were refused. One of them was objectionable, as stating the proceedings of justice Dawson not to be void, but only voidable, and the others were irrelevant
The judgment is affirmed, with costs.
This case overrules that of Eastwood v. Buel, 1 Carter’s Ind. R. 434.
