22 Ind. 163 | Ind. | 1864
This was a suit in the Common Pleas to vacate a judgment rendered before a justice of the peace, and
The gravamen of the complaint was that the judgment was rendered against a resident of a different township of the. county from that in which the judgment was rendered, there being, at the time, a justice in the township of the defendant.
The complaint did not give a transcript of the judgment and proceedings before the justice, nor state whether the judgment was rendered upon default or otherwise.
The Court granted a temporary injunction. At the next term the defendant answered, without oath, alleging that the judgment was rendered by confession; and then moved to dissolve the injunction, and it was dissolved.
The plaintiff appealed.
It is claimed that the Court erred in dissolving the injunction without written notice of the motion for dissolution having been duly given to the plaintiff.
The code provides, sec. 152, p. 59, that motions to dissolve or modify injunctions may be made in open Court, at any time after reasonable notice to the opposite party, which notice, by another section, is required to be in writing. 2 R. S. p. 222, § 792.
The answer in this case not being verified, and being unaccompanied by affidavits of extrinsic facts which might have furnished a ground for dissolution, constituted no basis for a motion to dissolve.
But the complaint itself was utterly insufficient to justify the original grant of the injunction.
The provision in the statute that a defendant shall not be sued out of his township is for his personal advantage, and may be waived. Jurisdiction of the person may be conferred by consent, not of the subject matter. A complaint, therefore, to enjoin such a judgment should show that the judg
As the injunction was erroneously granted, this Court will affirm the order dissolving it with costs.
The judgment is affirmed accordingly.