149 Ind. 554 | Ind. | 1898
It appears from the complaint that appellant, on the 21st of October, 1895, commenced an action before a justice of the peace of Allen county, on two promissory notes; that a summons was issued and placed in the hands of a constable of the township, commanding him to summon appellee to appear before said justice of the peace in said cause on October 25, 1895; that said writ was served on one Isaac Byall by leaving a copy of said summons at his last and usual place of residence; that on October 25,1897, judgment was rendered by said justice of the peace by default against appellee; that the summons issued in said action was never served upon appellee by reading or otherwise, and he never received or had, any notice of any kind, or from any source, of the pend-ency of said action, or the rendition of said judgment, until the 8th day of February, 1896. Facts showing a meritorious defense to the action brought before the justice of the peace are alleged. It is also alleged that the judgment was taken against appellee through his excusable neglect, and that he would have pleaded and proved the defense alleged if he had been notified of said action; that appellant has caused a transcript
The issues formed were tried by the court, and upon a finding in favor of appellee, over a motion for a new trial, judgment was rendered that said judgment of the justice of the peace be “opened and vacate*! so as to enable the defendant [appellee] to make his defense therein, and the justice of the peace is ordered to allow defendant [appellee] in said action to make his defense to the same,” etc.
The theory of appellee and the trial court was that the proceeding was brought to relieve appellee from a judgment taken against him through his excusable neglect. Such a proceeding is governed by section 399, Burns’ R. S. 1894 (396, R. S. 1881), which does not apply to proceedings before justices of the peace. Brown v. Goble, 97 Ind. 86; 6 Ency. Pl. and Prac., 149. Said section does not authorize circuit or superior courts to relieve a party from a judgment taken against him before a justice of the peace. Under said section, the application for relief from a judgment must be made to the same court in which the same was rendered. 6 Ency. of PL and Prac., 149. Filing a transcript of the judgment of tfre justice of the peace in the office of the clerk of the court below, under the provisions of sections 624, 625, Burns’ R. S. 1894 (612, 613, R. S. 1881), .was to make the judgment a lien on appellant’s real estate in Allen county, and did not make the same a judgment of the trial court, or give it any authority to grant relief therefrom, under section 399 (396), supra; 6 Ency. of Pl. and Prac., 150.
Under the statutes of this State, no person who is a ' resident of any township in the State can be sued before a justice of the peace out of the township in which he resides, unless said suit is commenced by capias ad respondendum, or when there is no justice of the peace competent to act in said township. Sections 1498, 1499, 1508, Burns’ R. S. 1894 (1431, 1432, . 1441, R. S. 1881); Michael v. Thomas, 24 Ind. 72; Wilkinson v. Moore, 79 Ind. 397. It is true that under such statute, where a resident of this State is sued upon contract, and judgment rendered, without an appearance of the defendant, before a justice of the peace out of the township in which he resides, and the action is not
The collection of the judgment in the class of cases to which Brickley v. Heilbruner, supra, and those following it, belong, was enjoined upon the ground that the defendant was not a resident of the township in which he was sued, and for that reason the justice, under the statute, had no jurisdiction over his person, and could only obtain such jurisdiction by an appearance, which waived the question of jurisdiction -over the person, and not upon the ground that the return of service or the recitals in the judgment were false, and could, be contradicted. It is not alleged in the complaint that appellee was not a resident of the township in which the suit was commenced, and this case does not, therefore, fall within the class to which Brickley v. Heilbruner and those following it belong, but falls within the class to which Hume v. Conduitt, supra, belongs, and is ruled thereby.
It follows that the court erred in overruling appellant’s demurrer to the complaint. The evidence is not in the record, for the reason that the record does not show that the bill of exceptions was filed in the clerk’s office after it was signed by the judge. Ayres v. Armstrong, 142 Ind. 263, and cases cited; Ueker, Admx., v. Bedford Blue Stone Co., 142 Ind. 678, and cases cited; Robinson v. Dickey, 143 Ind. 205, 210, and cases cited; Wenning v. Teeple, 144 Ind. 189, 192; Drake v. State, 145 Ind. 210, 217-218, and cases cited.