Smithson v. Dillon

May 30, 1861
Reporters:
,
Before:
Perkins
Perkins, J.

Suit uрon an account, commenced before a justice of the peace. A bill of рarticulars with the names of the parties constituted the cause of action, and was sufficient. The cause was appealed to the Common Pleas, and was tried at a term of the Court holden on and after the first Monday in August, 18G0. An answer was .filed, allеging that the Court was without jurisdiction, because it was nоt held at the time prescribed by law. The answer wаs rejected.

If the term, was not held at the time prescribed by law, such holding has been already ‍‌​‌​​​​‌‌‌​​​​‌​​‌‌‌‌​​​​​‌‌​​​​‌​‌‌​‌‌​‌‌​‌‌‌‌‌‍decided to constitute a ground for the reversal of a judgment rendered at such term. McCool v. The State, 7 Ind. 378. Whether this is the English doctrine, quœre. See Skelton v. Bliss, 7 Ind. 78.

The counties of Blaohford, Delaveare and Grant were constituted originally, and continued to the time of the triаl of this cause, a Common Pleas district.

The statute of 1853, prescribed the times of holding Court, as follows:

“ In the county of Blaohford, on the second Mondays in January, April, July and October.”

“ In the county of Delaware, on the fourth Mondays in January, April, July and October.”

“ In the county of Grant, on the Mondays succeeding the Courts in the county of Delaware in January and July” &c. Acts 1853, p. 41; Accord. Acts 1855, p. 71.

These acts did not fix a day for holding the Grant Common Pleas in January and Jtcly, but made it dependent upon the time ‍‌​‌​​​​‌‌‌​​​​‌​​‌‌‌‌​​​​​‌‌​​​​‌​‌‌​‌‌​‌‌​‌‌‌‌‌‍fixed for hоlding the Court in Delaware, so that the Courts should not conflict, but direсtly succeed each other. This would seem tо be proper, as both counties were in thе same district, and the Courts in them to be held by the same judge.

In 1859, the Legislature enacted that the terms in Black-ford county should commence on the third Mondays in January, April, July and October; and that those of the *171Delaware Common Pleas should commence on the first Mondays in January, April, July and October, and should continue two weeks at each term. Acts 1859, p. 77.

No provision was made as to the Grant Common Pleas.

Here, then, we have an act of 1859, prescribing that the Delaware Common Pleas should commence on the ‘first Monday in July, and continue till the third Monday; that the Blackford Common Pleas, to be holden by the same ‍‌​‌​​​​‌‌‌​​​​‌​​‌‌‌‌​​​​​‌‌​​​​‌​‌‌​‌‌​‌‌​‌‌‌‌‌‍judge, should commence on the third Monday ; and an act of 1855, that the Common Pleas of Grant county, to be holden by the same judge, should commence on the Monday, two weeks from the commencement of the Delaware Court,, which would be the third Monday, the same day of the commencement of the Blackford Common Pleas. Such is the natural construсtion of these statutory provisions; but this constructiоn certainly does not meet the intention of the Legislature,.because it produces an enactment requiring an impossibility, viz., that the same judge should hold two Courts, widely separate from each other, at the same time.

Does, then, the aсt of 1859 repeal altogether ‍‌​‌​​​​‌‌‌​​​​‌​​‌‌‌‌​​​​​‌‌​​​​‌​‌‌​‌‌​‌‌​‌‌‌‌‌‍the provision of 1855, as to the Grant Common Pleas, on the ground of rеpugnancy ? This could scarcely have beеn the- intention of the Legislature, because it leaves Grant county, annually, without two terms, at least, оf the Court.

Another view: Dy the act of 1855, the July term of the Delaware Common Pleas commenced on the fourth Mondap of that month, and continued two weeks. This placed the Grant Common Pleas in August; and would still place it out of conflict with the Blackford or Delaware Courts, as fixed by the act of 1859. Can we, then, сonstrue the ‍‌​‌​​​​‌‌‌​​​​‌​​‌‌‌‌​​​​​‌‌​​​​‌​‌‌​‌‌​‌‌​‌‌‌‌‌‍provision in the act of 1855, touching the holding of the Grant Common Pleas, to be in force, аnd limit the language- in it, viz., that the Grant Common Pleas shall commence on the Mondays succeeding the Delaware Common Pleas, to the Mondays succeeding that Court, аs held under the act of 1855? This was the view acted upon by the Court below.

We think it will not strain the rules of cоnstruction beyond precedent, to uphold thе action of the Common Pleas in the premisеs ; while it will probably accord with legislative *172intentiоn, and certainly with public practice and thе interests of the community. The subject has been regulated by statute, for the future. On the evidence we can not reverse the case.

A. Steele and U. L>. Thompson, for the appellees. Per Curiam.

The judgment below is affirmed, with costs.