Smith v. Waters

| Ind. | Nov 15, 1865

Ray, J.

Tbe appellee brought an action of replevin before a justice of tbe peace. Tbe value of tbe property claimed was stated in tbe complaint at $30. Tbe finding was for tbe appellant. Waters appealed to tbe Court of Common Pleas, where a motion was made to dismiss the appeal; the motion was overruled. The two grounds upon which it is insisted in this court that the motion should have been sustained are: 1st. That the replevin bond had no revenue stamp upon it. If a revenue stamp were required upon the bond, the omission to attach it would furnish no ground for dismissing the appeal. If no bond whatever had been filed, the party could still have prosecuted his action for possession of the personal property.

It is urged as a second ground for the dismissal, that the appeal bond was not stamped. The “act to provide internal revenue to support the government, to pay interest on the public debt and for other purposes,” approved June 30, 1864, (Laws U. S., 38th Congress, p. 234,) provides, in schedule B, that a fifty cent revenue stamp shall be placed “ upon writs or other process-on appeal from justices’ courts, or other courts of inferior jurisdiction, to a court of record.” In our opinion, the bond filed before a justice-of the peace is neither a “writ” nor “process,” within the meaning of the law.

It has been held by the Commissioner of Internal Revenue that “ an appeal bond, or instrument by which a suit is-transferred from a justice of the peace to a superior court, is an original process, and subject to stamp duty as such.”

In this State, the filing of the appeal bond operates to transfer the case to the proper court; no writ or process is issued. In the case of Malone et al. v. Hardesty, 1 Ind. 79" court="Ind." date_filed="1848-05-31" href="https://app.midpage.ai/document/malone-v-hardesty-7031521?utm_source=webapp" opinion_id="7031521">1 Ind. 79, this court regarded the appeal as perfected without “ process” to the appellee. Blackstone defines process to be the means of compelling the parties to appear in court; first, by summons, next, by attachment, &c. In our practice, the appeal operates upon the case and transfers it to the higher court, and the party must take notice-of the appeal without process. If the opinion expressed by the commissioner, while entitled to great consideration, is to be regarded as in conflict with this view, still we cannot yield our judgment to this construction. The law itself provides that the only case in which his opinion is to be final, is where he decides that an instrument does not require a stamp. It is a well settled principle, that every charge under a stamp act must be imposed by clear, unambiguous words. Denn v. Diamond, 4 B. & C., 245; Doe v. Snaith, 8 Bing. 147; Wrought v. Turtle, 11 Mees. & W., 560; 3 Parsons on Contracts, 287. Whatever may have been the intent of the statute, there are no words used which, in our opinion, require a stamp duty oh an appeal bond filed before a justice.

J. Taryan, for appellant. Brown and Polk, for appellee.

The judgment is affirmed, with costs,