26 Ind. 176 | Ind. | 1866
In June, 1865, Meloy recovered a judgment before Kendrick, a justice of the peace, against Howk, for $18 45 and costs. In August following, Howk recovered a judgment before the same justice against Meloy, for $19 91 and costs. In September of the same year, the appellant filed with the justice his written motion, praying that so much of his judgment as was necessary might be set-off against the judgment of Meloy, in satisfaction thereof, except as to costs. The justice rendered a judgment of satisfaction. Appeal to the Court of Common Pleas by Meloy. The appellee demurred to the complaint. The court below held that the justice of the peace had no jurisdiction and dismissed the ease. Howk appeals to this court.
It is insisted that this is a proceeding in equity, and therefore the justice had no jurisdiction. McKinney v. Bellows,
The justice’s act provides that “in all cases not in this act ■specially otherwise provided, proceedings before justices shall be governed by the practice and usages of the Circuit Court, and the rules of the common law, so far as the same are in force in this State.” 2 G. & H., § 75, p. 600. It is contended that this does not confer jurisdiction. That is true, but it embraces a proceeding by motion to set off one judgment against another rendered by the same justice. That is an incident of the judgments, and not an original subject matter of jurisdiction.
The judgment is reversed, with costs, and the cause remanded to said court, with directions to overrule the demurrer to the complaint, and for further proceedings.