102 Ind. 69 | Ind. | 1885
The only error assigned by the appellants, the plaintiffs below, upon the record of this cause, is the overruling of their demurrer to the second paragraph of appellee’s answer.
It is necessary, we think, to a proper understanding of this case, and of the questions presented therein for decision, that we should first give a summary of the facts stated bv the appellants, in their complaint, as constituting their cause of action against the appellee Albertson and his co-defendant, one George W. Harbaugh.
Appellants alleged that, on July 19th, 1883, in an action
“ State of Indiana, Hamilton County, ss :
“We, George W. Harbaugh and William Albertson, are bound unto Clarissa Harbaugh and Thomas J. Harbaugh in the penal sum of one hundred dollars, under the conditions following: Whereas, the said George W. Harbaugh has this day filed with Samuel T. Dunham, a justice of tin; peace of Jackson township, Hamilton county, Indiana, a complaint against Clarissa Harbaugh and Thomas J. Harbaugh, for the recovery of one hundred and fifty dozen of wheat in the sheaf, and he is about to take out a writ to replevin the samo: How, if said George W. Harbaugh shall prosecute his complaint to effect, and return said wheat to said Clarissa Harbaugh and Thomas J. ílarbaugh, if judgment of return be awarded them, and pay all damages awarded them in said cause, then this bond shall be void. Witness our hands and seals this.19th day of July, 1883.
“(Signed) G. W. Harbaugh.
“Wm. Albertson.”
And appellants alleged that such bond was then duly approved by such justice, and a writ of replevin was then duly issued to a constable of Jackson township, who, by virtue thereof, seized one hundred and fifty dozen sheaves of appellants’ wheat, in the field and barn, and delivered the same to George W. Harbaugh; that such justice issued process, requiring appellants herein to appear before him, on July 25th, 1883, and answer such complaint in replevin', and such process was duly served on them; that on the day named the parties appeared before such justice, and, on appellants’ application, the venue of the cause was changed from before
And the appellants averred that the defendants in this suit had not, nor had either of them, returned such wheat to the .appellants, but that the defendant George W. Harbaugh had threshed such wheat and converted the same to his own use, to appellants’ damage in the sum of $100, which sum the •defendants had not paid, nor offered to pay to the appellants ; that the proceedings in such replevin suit were wrongful and oppressive; and that the grounds of the replevin, alleged in ■the affidavit and complaint therein, were untrue as the-plaintiff in' that suit well knew; by reason of all which appellants were damaged $100. Wherefore, etc.
In the, second paragraph of his separate answer to the fore-going complaint, the appellee Albertson alleged that the bond in suit was invalid and void, for the following reasons, namely: That such bond was executed in a pretended legal proceeding before Samuel T. Dunham, a justice of the peace of Hamilton county, and that all the parties to such proceedings, both plaintiff and defendants, were related to such justice of the peace, within the sixth degree of consanguinity; and such justice attempted to take and approve such bond, notwithstanding the relationship so existing between him, such justice, and the .parties to such pretended suit.
The question for decision in the case may be thus stated: Are the facts alleged in the foregoing answer, and admitted .to be true by the demurrer, sufficient in law to constitute a
The case of Caffrey v. Dudgeon, 38 Ind. 512 (10 Am. R. 126), cited and relied upon by appellee’s counsel, as supporting the ruling below, is not in point here, because, in that case, as is shown by the opinion of the court, the justice of' the peace before whom the replevin suit was commenced, and who took and approved the replevin bond, had no jurisdiction of the subject-matter of such suit. In that case this court cite with approval the previous case of Sammons v. Newman, supra. After stating the point decided in the previous ease, as we have heretofore stated it in this opinion, the court said: “ There can be no doubt that the ruling in said case was cor-'
In the case, of Trueblood v. Knox, 73 Ind. 310, which was an action;-,upon a replevin bond taken and approved by a justice of thp peace,- it was claimed by the defendants that the bond in suit was void, because the penalty thereof was less than double the value of the property, the return of which it was given to secure. It was held by this court that while, perhaps, this objection to the replevin bond might have been urged as a reason for the dismissal of the replevin suit before the trial thereof, “ it by no means follows,” says the court, •“ that such an objection could be set up as a defence in a suit upon the bond. On the contrary, upon every principle of fair •dealing and of reciprocal obligation, the appellee was jjre-cluded from setting up the insufficiency of the penalty of the bond as a defence, after the writ of replevin had been issued, .-and the possession of the property obtained upon it.”
In Carver v. Carver, 77 Ind. 498, the action was upon a replevin bond, which had been taken and approved by a justice of the peace. The defence was that the bond sued on was not in a penalty double the value of the property sued for, and was therefore void, and gave the justice no jurisdiction to issue the writ of replevin upon which such property was seized. It was held that the facts stated constituted no •defence to the action on the bond. The court said : “ The principal obligor tendered the bond in suit to the justice as being sueh as the law required, and thus secured the writ which put him in possession of the personal property of an
In the case at bar we are of opinion that the appellee is and ought to be estopped, in equity and good conscience, from setting up the facts stated by him in the second paragraph of his answer, in bar of the appellants’ action. Having by his execution of the bond in suit enabled his co-defendant, to get possession of, and convert to his own use, the appellants’ wheat, the appellee ought not to be permitted to escape liability for the value of such wheat, upon the ground stated in such second paragraph of answer, when the record shows that his co-obligor and principal in such bond had voluntarily submitted his person to the jurisdiction of such justice of the peace. It is well settled that a party may voluntarily submit the jurisdiction of his person to a justice of the peace, who has jurisdiction of the subject-matter of the suit; and that, when this has been done, such party will not be permitted 'afterwards to controvert the justice’s jurisdiction of his person. Ludwick v. Beckamire, 15 Ind. 198; Nesbit v. Long, 37 Ind. 300; Mayes v. Goldsmith, 58 Ind. 94.
Our conclusion is that the circuit court erred in this case in overruling the appellants’ demurrer to the second paragraph of appellee’s answer.
The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the demurrer to the second paragraph of answer, and for further proceedings in accordance with this opinion.