54 Ind. 333 | Ind. | 1876
Appellee, as plaintiff, sued the appellants, as defendants, in the court below. In his complaint appellee alleged, in substance, that on December 22d, 1874, the appellant George C. Tyler had commenced an action against the appellee, before William L. Hamilton, a justice of the peace of Steuben township, in Warren county, Indiana, to recover from appellee the possession
Appellants demurred to appellee’s complaint for the want of sufficient facts therein to constitute a cause of action, which demurrer was overruled by the court below, and to this decision appellants excepted. Appellants then answered in two paragraphs.
1. A general denial.
To the second paragraph of appellants’ answer, appellee demurred for the want of sufficient facts therein to constitute a defence to the action; which demurrer was sustained by the court below, and appellants excepted.
The action being at issue was tried by the court below, without a jury; and the court found for the appellee, and assessed the amount of his recovery at one hundred and sixty-eight dollars and thirty-nine cents, and judgment was rendered upon the finding by the court below. Upon written cause, appellants then moved the court below for a new trial, which motion was .overruled, and to this decision appellants excepted.
In this court appellants have assigned the following alleged errors, viz.:
1. Overruling appellants’ motion for a new trial.
2. Overruling appellants’ demurrer to appellee’s complaint.
The cause for such new trial stated in appellants’ motion was this: because the court erred in overruling the following motion made by appellants before entering on the trial,—“ the appellants move the court to dismiss this cause, because the complaint shows affirmatively that the justice of the peace had not jurisdiction, the property replevied being worth two hundred and fifty dollars, to which ruling appellants at the time excepted.”
This was the only cause assigned in appellants’ motion for a new trial. Very singularly, it does not appear in the record of this cause, elsewhere than in said motion for a new trial, that the appellants ever moved the court below to dismiss this action for any cause whatever, or that the court below decided any such motion, or that the appellants excepted to any such decision. But if the record did show the matters recited in appellants’ motion for a new trial, as therein 'stated, they would constitute no cause for such new trial. Section 352 of our code of practice (2 R. S. 1876, p. 179,) states all the causes for
The second error alleged by appellants is, that the court below erred in overruling their demuiTer to appellee’s complaint. The ground of appellants’ objection to the complaint, as stated in their demurrer, was that the complaint did not state facts sufficient to constitute a cause of action. In their argument, the only objection urged to the complaint by appellants was, that it appeared upon the face of the complaint, that the bond sued on in this action was taken and approved by the justice of the peace in a replevin suit of which the justice had no jurisdiction, by reason of the fact that the value of the property replevied exceeded the sum of two hundred dollars. But we do not find that any thing of the kind appeared in appellee’s complaint. Appellee did not state in his complaint in this action what value the appellant George C. Tyler placed upon the corn in his replevin suit before the justice. But as the bond sued on in this action was in the penal sum of three hundred and twenty-five dollars, and as the law required the justice, in such a case, to take and approve a bond in a sum. double the value of the property replevied; and as we are bound to presume, the contrary not appearing, that the justice did what the law required him to do,—we think that we may safely assume in this case that the value of the corn replevied, as stated in the complaint of the appellant Tyler before the justice, and its actual value, did not exceed the sum of one hun
The judgment of the court below is affirmed, at the costs of appellants.