Thatcher v. Coleman

5 Blackf. 76 | Ind. | 1839

Blackford, J.

The plaintiffs sued the defendant before a justice of the peace on a note for 40 dollars and 32 cents. Judgment by confession for the amount of the note.

The defendant appealed to the Circuit Court.

The note was payable to “ Thatcher and Walker,” and the suit was brought in that name, without setting out the Christian names of the plaintiffs. The form of the judgment by the .justice is, that the plaintiffs recover of the defendant the sum of, &c.

The Circuit Court, on the defendant’s motion, dismissed the suit on the ground, that it could not be sustained in the name of “ Thatcher and Walker,” the plaintiffs’ Christian names being omitted.

This judgment must be reversed. The judgment having been rendered by the justice on the confession of the defendant, the Circuit Court had no jurisdiction of the cause. The statute is express, that from judgments by confession before justices of the peace, there shall be no appeal. Rev. Code, 1831, p. 297. The Court, therefore, had no authority to dismiss the suit, and .thus deprive the plaintiffs of their judgment rendered by the justice. The appeal — not the suit — should have been dismissed.

A. S. White and R. A. Lockwood, for the plaintiffs. J. Pettit, for the defendant.

If, however, this objection to the jurisdiction did not exist, the judgment would still be erroneous. The objection to the suit, founded on the omission of the Christian names of the plaintiffs, was waived by the defendant’s appearance and confession of judgment.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the motion to dismiss the suit set aside, with costs. Cause remanded, with instructions to the Circuit Court to dismiss the appeal for want of jurisdiction.