Rodman v. Kelly

13 Ind. 377 | Ind. | 1859

Worden, J.

This was an action for the possession of certain articles of personal property, brought by the appellee against the appellants, before a justice of the peace.

On appeal to the Circuit Court, the defendants moved to dismiss the cause for want of jurisdiction in the justice.

The motion was overruled and exception taken.

Trial by the Court; finding and judgment for the plaintiff below. New trial moved, on the ground that the Court improperly overruled a motion to suppress a deposition taken by the plaintiff.

The ground of the motion to dismiss the cause, was that the property was taken by the defendant, Rodman, as the sheriff of Boone county, by virtue of a writ of attachment issued from the Boone Common Pleas against one Joseph Kelly, at the suit of the other defendants, as the property of said Joseph Kelly. It is insisted that in such case, a justice of the peace has no jurisdiction.

If this were a proceeding under the provisions of the statute “ authorizing proceedings to try the right of property seized by virtue of any writ of execution or attachment,” &c. (2 R. S. p. 493), the objection would probably be well taken, as that statute contemplates such proceedings • before a justice only in cases where the property has been seized by virtue of process issued by a justice. Matlock v. Strange, 8 Ind. R. 57. It is insisted that the foregoing statute is the only one giving justices jurisdiction in cases where property has been seized by execution, &c., and as he has no jurisdiction under this statute where the property was seized by process issued from the Common Pleas, therefore, the proceeding before the justice was without authority, and void.

This suit was instituted under the provisions of § 71, 2 R. S. p. 464, which, in our opinion, clearly authorizes it. Under this latter statute, a plaintiff may, in all cases, proceed before a justice where his personal property, not exceeding in value 100 dollars, has been wrongfully taken or unlawfully detained by any other person, where “the same has not been taken by virtue of any execution or other writ against him.”

A party, where his property has been seized by virtue of an execution or attachment against another person, is not confined to the remedy provided on page 493 of the code, but may proceed to replevy the same under the other provisions of the statute.

The motion to dismiss the cause was correctly overruled.

The motion to suppress the deposition was based upon alleged insufficiency of the notice in respect to the place where the same was to be taken. The notice specified that the depositions were to be taken “in the office of the clerk of the Circuit and District Court of Marshall county, in the state of Illinois.” This notice is vague and unsatisfactory as to place. A person in Indicma could not, perhaps, be presumed to know at what particular town or place the clerk of a Court in another state kept his office. If the place is fixed by a law of Illinois, still a person here would not be bound, nor would he be expected, to notice the law of another state. But still, admitting the notice to be insufficient, we think the error is not sufficient to reverse the judgment.

The deposition is not contained in the record, and we have no means of determining its character, or ascertaining whether there was anything in it that worked an injury to the defendants. The record does not even show that it was read on the trial of the cause at all. This question has, in principle, been already determined. Thus, in the case of Culbertson v. Stanley, 6 Blackf. 67, an improper question was asked of a witness, and an objection to it overruled. It was held to be erroneous; but the Court say, as a reason why the error was not fatal, “the record does not contain the answer of the witness, nor inform us whether he answered the question at all or not, we do not know whether the defendant was injured by it or not.” Again, in the case of Jones v. Doe, 1 Ind. R. 109, objection had been made to certain witnesses introduced. The Court say: “The record does not disclose what was stated by the witnesses objected to, and it is, therefore, impossible for this Court to determine what was the nature of the testimony given by them, or what influence it could have had upon the jury, if any.”

A. J. Boone, for the appellants. T. J. Cason, for the appellee.

So in the case at bar, we are not informed whether the deposition was read on the trial, or if read, there is nothing before us from which we can say that the defendants were injured thereby.

Per Curiam.

The judgment is affirmed with costs.