15 Ind. 198 | Ind. | 1860
The appellant, who was the plaintiff, sued Beelcamire before a justice of the peace of Shelby township, Ripley county, alleging in his complaint, that he had loaned the defendant a certain horse, which he, defendant, drove immoderately, and kept negligently, whereby said horse became diseased, and of no value, &c. Process, upon the complaint, was duly issued against the defendant, and by the proper constable returned, served. On the day set for the trial of the cause, the defendant appeared before the justice, and pleaded to the complaint thus: “ That said plaintiff is not, nor was he at the commencement of this suit, a resident
The action of the Court, in its dismissal of the suit, raises the only question to be settled in the case. The code says: “The jurisdiction of justices, in civil cases, shall, unless otherwise provided by law, be limited to their townships respectively.” “No person shall be sued before any justice, out of the township where he resides, unless such suit is commenced by capias, or where there shall be no justice in such township competent to act,” &e. An exception to this rule is, that “suits for trespass to real or personal property may be brought in the township where the defendant resides, or where the trespass was committed.” 2 R. S., §§ 9, 13, and 15, pp. 451-453. There are other exceptions to the above rule, but they are plainly inapplicable to the case before us. Id. §§ 14-20.
The facts stated in the motion obviously show, that the justice had not, in view of- the statute to which we have referred, jurisdiction of the person of the defendant. But it is argued that by pleading to the merits before the justice, and failing to raise the point of jurisdiction, he waived his right to make that point in the Common Pleas. We concur in this position. If the defendant was really not a resident
¥e think the Court erred in dismissing the suit.
judgment is reversed, with costs. Cause remanded, &c.