Snyder v. Snyder

25 Ind. 399 | Ind. | 1865

Frazer, C. J.

The complaint in this case contained two paragraphs. The first was upon what purported to be a judgment rendered by a justice of the peace, alleged to be of Summit county, in the State of Ohio. There was no allegation of the jurisdiction of the justice, nor any equivalent averment, and the transcript of the judgment filed with the paragraph had no placita, and nothing showing where it was rendered, and no authentication. The second paragraph was upon a promissory note of precisely the same description as the one upon which the judgment purported to have been rendered.

The overruling of a demurrer to the first paragraph of the complaint is assigned for error. The objections urged to the paragraph are: 1. That-the copy of the transcript filed was not authenticated by any certificate. 2. That it had no placita. 8. That no sufficient service of summons is shown by the transcript to have been made on the defendant. 4. That it does not' appear that the justice had jurisdiction of the subject matter. Of these in their oi’der.

1. We know of no reason why the authentication of a transcript of a judgment sued on should be filed with the complaint, and we have no statute requiring it. In Phelps v. Tilton, 17 Ind. 423, this precise question was made, but not, as we think, decided. We think that there is nothing in the objection.

2. As to the placita, in Phelps v. Tilton, supra, this objection was held to be good on demurrer, on the authority of Doe v. Smith, 4 Blackf. 228. But in Doe v. Smith the question was one of evidence and not of pleading, and that case is not, therefore, an authority upon the point under examination. This suit was upon a judgment, and the most that the statute requires is that a copy of the judgment shall be filed with the complaint. This does not necessarily mean the whole record of the cause in which the judgment was rendered. Rathbone v. Rathbone, 10 Pick. 1. The placita may be necessary to a complete record of the cause; it may be required to whatever transcript of a judgment shall be offered in evidence in order to secure its admission, but it is impossible to conceive of a good reason why either it or certificates of authentication shall be filed with the complaint, where there is an express-averment of the same facts which the 'plácito, would show. To hold that a copy of the entire record must be filed, embracing often a voluminous mass of matter utterly useless in the case, and not even admissible* in evidence, (2 Dana 21; 9 Foster N. IT., 471,) making in some cases the costs of the transcript vastly exceed the sum in controversy, would be too absurd to be tolerated. The statute requires no such practice, in our opinion. It would be a positive impediment to justice, and such a reproach to the present system of procedure as could not be alleged against that which formerly prevailed, notwithstanding the technical absurdities which had grown upon it and rendered it more obnoxious than it deserved. This ruling is notin conflict with Williamson v. Foreman, 23 Ind. 540.

3d and 4th. As to the service and jurisdiction of the subject matter. The transcript shows the following return to a summons: “Received on the 21st day of June and served on the 21st, by leaving a copy at place of residence with Daniel Snyder. Samuel JB. Wise, constable.” This was not sufficient service, at common law, to give jurisdiction of the person. At common law a justice of the peace had no civil jurisdiction. It is not averred in the complaint that, by the laws of Ohio, he had such jurisdiction, or that such service of process was sufficient, nor does the complaint contain the allegation, made equivalent thereto by the statute, “that the judgment or decision was duly given ox-made.” 2 G. & H., § 83, p. 107. The demuner to the' pax-agi-aph should have been sustained. Crake v. Crake, 18 Ind. 156. Motions to strike out the second paragraphs of the complaint, and to compel the plaintiff to elect upon, which paragx-aph he would go to-trial, wex-e ovex-ruled. These motions were supported by an affidavit showing that the note claimed to have been reduced to judgment, anda the one counted upon in the second paragraph was the-same note. The ends of justice require that a party should. be permitted to-state Ms case in various forms, so as to correspond with the proof, and thus secure his rights, without being compelled to resort to a second suit. So, inconsistent causes of action should be allowed to be joined, as well as inconsistent defenses. McMasters v. Cohen, 5 Ind. 174. In those States where the unwise requirement exists compelling parties to swear to the truth of the claim or defense, thei’e is a reason for the proceeding sought to be enforced by the defendant below, but there is none here. The transcript offered in evidence was properly admitted. The certificates by which it was authenticated supply the formal .placita required in the transcript of a record of a court of general jurisdiction. Proof of the justice’s jurisdiction might properly follow the admission of the transcript, and meed not precede it.

Woods and Arnold, for appellant. Main and Clark, for appellee.

There was a motion to suppress a deposition, upon the ground that it did not appear that notice of the taking thereof had been served on the defendant. An affidavit showing proper service was thereupon indorsed upon the notice '-accompanying the deposition, sworn to before a notary, one O. H. Main, a person of the same name being one ■of the plaintiff’s attorneys of record. The motion to suppress was thereupon overruled. There was no hurt to the defendant in writing the affidavit of service upon the notice. If we presume, from the identity of name, that the notary was the attorney, still we could not reverse the case on that ground. The statute does not permit us to be so technical. .2 Or. & H., § 101, p. 122.

The judgment is reversed, with costs, and the cause ■■remanded, with directions to¡ set aside all proceedings subsequent to the demurrer to the. first paragraph of the substituted complaint, and to sustain that demurrer*, and to proceed with the cause.