3 Ind. App. 64 | Ind. Ct. App. | 1891
On the 17th day of July, 1880, the appellant recovered a judgment against the appellee before Isaac H. Carbaugh, a justice of the peace of Dearborn county, for $76.
By the docket entry of the justice of the peace it appears
“ Plaintiff, Mary Kreite, complains of the defendant, Catharine Smith, and for an amended and substituted complaint says the said defendant is indebted to her for necessaries furnished by her to defendant at her instance and request, and that plaintiff and defendant had a settlement, and by said settlement the defendant was indebted to her in eighty-four and dollars, which amount the defendant agreed to pay. John A. Parks,
“Att’y for Plaintiff.
“And the plaintiff having made proof of her complaint, it is therefore adjudged that the plaintiff recover of and from the defendant the sum of seventy-six dollars, with interest thereon from this date, together with her costs, and all accruing costs. Isaac H. Carbaugh, [Seal.]
“ Justice of the Peace.”
The plaintiff’s attorney endorsed thereon, •“ No execution to be issued on this judgment unless ordered by the plaintiff.”
The judgment remained in this condition without execution until the 4th day of October, 1889, when affidavit was filed by the judgment plaintiff that the judgment had not been paid, or any part thereof, and on the same day execution was issued and returned nulla bona; that afterwards a transcript of said judgment was filed in the clerk’s office of the Dearborn Circuit Court, and execution issued thereon „ directed to the sheriff of said county; that afterwards, on the 8th day of November, 1889, the appellee filed her motion, duly verified, in the Dearborn Circuit Court, asking for an order of said court allowing her to appeal from said
The appellant moved to dismiss said motion, which was overruled and exception taken.
The appellant then filed a demurrer to said motion, which was overruled and exception taken, and the court thereupon caused to be entered an order granting the appellee an appeal as prayed for in said motion upon her filing with said justice of the peace, Henry J. Smith, an appeal bond in the sum of two hundred dollars, to the approval of said justice, within five days, and said justice was ordered and directed, upon the'filing of said bond within five days after the filing thereof, to make and certify a full and complete transcript of said judgment, with all the papers in said cause in his possession, to the clerk of the Dearborn Circuit Court. Afterwards, and within the time prescribed in said order, an appeal bond was duly executed, and said justice, pursuant thereto, filed in said court a transcript of an appeal in said cause, with all the entries on his docket pertaining thereto. Thereupon the appellant entered a special appearance, and by written motion for the causes therein stated moved to dismiss said appeal, which motion was overruled and exception taken. The appellant then filed an answer to the appellee’s application for leave to appeal, which, on motion of the appellee, was rejected and exception taken.
It appearing, by answer ,pf the justice in discharge of the rule entered against him to certify to said court the original papers in said cause, that said papers were not on file in his office and could not be found, leave was granted the appel
The cause was tried by a jury, resulting in a verdict in favor of the appellee, and judgment was rendered on the verdict, over a motion for a new trial.
Under the assignment of errors it is alleged:
1st. That the court erred in overruling appellant’s motion to dismiss the appellee’s application to be allowed to appeal the cause from the judgment of the justice of the peace after thirty days from the rendition thereof.
2d. That the court erred in overruling appellant’s demurrer to the application of appellee for an appeal.
3d. That the court erred in overruling appellant’s motion to dismiss the appeal.
4th. That the court erred in sustaining appellee’s motion to reject appellant’s answer to the appellee’s application for an appeal.
5th. That the court erred in refusing to try separately, before trying the cause, the issue presented by appellant^ answer to appellee’s application to be allowed to take an appeal from the judgment of the justice of the peace rendered in the cause.
6th. That the court erred in overruling the motion for a new trial.
The evidence is not in the record, and under the causes assigned in the motion for a new trial no question is before this court.
There was no error committed by the court as alleged in the fourth and fifth assignments of error. The answer of the appellant that was rejected on appellee’s motion was as to the original application for appeal, and after the same had been granted.
The questions sought to be raised by said answer had been determined by the court on the application for the appeal, and even though there was any rule of practice authorizing
Section 1499, R. S. 1881, limits the time within which the party may appeal from a judgment of a justice of the peace to thirty days. But section 1503 provides that “Appeals may be authorized by the circuit court after the expiration of thirty days, when the party seeking the appeal has been prevented from taking the same by circumstances not under his control.”
We do not think the practice under the code recognizes a demurrer as proper in such cases. There was a motion to dismiss the application for appeal, and also to dismiss the appeal after the justice had filed the transcript under the order and direction of the circuit court. Under these motions and the exceptions taken to the action of the circuit court in granting the appeal, the question as to the action of the circuit court in the case is fully presented in this court. A determination of the question as to whether the appellee was prevented from taking an appeal by circumstances not under her control, until after the expiration of thirty days, will dispose of all the questions the record presents in this case.
We do not concur with the appellant that the application for an appeal was a collateral attack upon the judgment, or that, because more than nine years had elapsed since its rendition, the appellee should be deprived of an appeal. The statute is broad enough to allow an appeal even after the lapse of so long a period, if the appellee was prevented from taking such appeal by circumstances not under her control.
We are constrained to say, under the affidavit of the appellee, a strong case was made in favor of granting the appeal. It certainly came within the meaning of the statute that she had been prevented from taking the appeal by circumstances not under her control! We are unable to conceive of any stronger reason that could be assigned than the statement of the court, when the appellee appeared at the hour set for trial, that the costs had been paid, the case dropped, and that she need not stay at all, but to go home to her baby, that would bring the ease within section 1503, supra.
It was surely not negligence in the appellee to rely upon thé statement of the justice, and believe the case had been dismissed, and especially so when she appeared at his office
There is no error in the record for which the case should be reversed.
The judgment is affirmed, at appellant’s costs.