25 Ind. 152 | Ind. | 1865
The appellant brought this action before a justice of the peace, to recover the possession of real estate which it was alleged the appellee unlawfully detained.
Upon an appeal to the Court of Common Pleas, the appellee moved to dismiss the action, on the ground that the justice had no jurisdiction of the cause of action set out in the complaint. Pending the decision of this motion, the appellant asked leave to amend, by inserting after the word “unlawfully” in the complaint, the words “and forcibly and with strong hand.” The court refused to permit the amendment, and sustained the motion to dismiss the action. From these rulings the appeal is taken.
The suit as it stood, under our former practice, would have been known as an action in ejectment, and upon its face
was without the jurisdiction of the justice. 2 R. S. 1852, § 12, p. 492; Short v. Bridwell, 15 Ind. 211; O’Connell v. Gillespie, 17 Ind. 459.
But it is insisted that the objection to the jurisdiction, not having been made before the justice, could not be heard in the Common Pleas Court. The statute, however, provides that the objection to the jurisdiction of the court over the subject of the action shall not be deemed to be waived. 2 G. & H., § 54, p. 81.
Should the court have allowed the amendment? The justice not having jurisdiction of the subject of the action, his entire proceedings were absolutely void. The penáis
The complaint in the case of Sturgen v. Hitchens, 22 Ind. 107, was somewhat like the one now before us, but the court there say, that “ no objection by motion or demurrer was made to the complaint, and perhaps it maybe held sufficient after verdict, but we decide nothing as to this.” It is not to be expected where a court expressly declines tó
Our statute is liberal in regard to amendments, but an amendment necessarily pre-supposes something, however defective, to be amended, but in the present case the cause of action, being without the jurisdiction of the justice, does not constitute a defective complaint, but is simply a nullity, and that cannot be amended. On the subject of amendments, we are prepared to rule, at least, that the original action cannot, as a matter of right, be changed by amendment into another cause of action. The form of the action may be changed, but here it was sought by amendment to change a cause of action over which the justice had no jurisdiction into one over which he had jurisdiction. We will not reverse a case on account of the refusal to permit such an amendment.
The judgment is affirmed, with costs.