| Ind. | Nov 15, 1865
Farrow filed, his complaint before Wilson, a justice of the peace, against the appellants to try the right of property in a mare, taken under a writ of attachment as the property of one Hathaway. The complaint alleged that the mare was the property of Farrow, by virtue of a mortgage filed therewith. The parties appeared on the day of the trial, and the justice, being a brother of one of the appellants, of his own motion, transferred the cause to one justice Seaton, in the same township. The parties appeared before justice Seaton at the time fixed for trial, and the appellee filed a second paragraph of Ms complaint, alleging that when he sold the mare in controversy to Hathaway, it was agreed between them that if Hathaway should not he able to pay tlie note for the purchase money when it should become due, Farrow was to have the right to take hack the mare, and, in the mean time, Hathaway was to have the right to give the mare up to the appellee at any time he found he would not he able to pay for her, and that Hathaway
The appellants asked the following instructions, which the court refused to give, and they excepted: 1. “ If the plaintiff took an unconditional note for the purchase money of the mare in controversy, he is not bound by any parol conditions made at the time the note was given, and may collect the note in full. 2. The taking of a mortgage at a time subsequent to the sale of the mare, to secure the note given for the price, is a relinquishment of the conditions of the sale, and of any lien created by such conditions.” ’
Verdict for the appellee. Motion for a new trial overruled, and 'judgment on the verdict. The evidence is contained in the record.
This case presents; the following questions: 1st. Did the court err in overruling the appellants’ motion to dismiss the
' The first error assigned, that the justice had no jurisdiction ->of the case, has been disposed of by. the ruling in the case of Cox v. Pruitt, ante p. 90. Where the court has jurisdiction of the subject matter, and the parties appear and .submit to the jurisdiction, they cannot present that question upon appeal. The complaint alleging that the plaintiff was entitled to the possession of the personal property was sufficient, without making the mortgage, -which was the evidence of his right, a part of the pleading. He did not ask the court to give him the right to the possession of the property by a decree, but he asserted a right already existing, and introduced the mortgage as evidence thereof.
The fact that a second paragraph of the complaint was not sworn to, furnished no ground for a dismissal of the case in the Common Pleas Court upon motion, and before trial, when the first paragraph was sufficient as a pleading.
The 67th section of the justice act, 2 G. & H., p. 596, which directs that cases appealed from the justice shall be “tried under the same rules and regulations prescribed for trials before justices,” must receive a reasonable-construction. Thus, its literal application to section 51 of the same act would require the jury who try the case on appeal to be composed of “twelve qualified voters of the township, to be summoned by a constable, by venire issued by the justice.” This clearly was not the intent of the statute, nor are we disposed to construe the next section as giving the parties, in the trial upon appeal, any greater number of peremptory challenges than are allowed to the parties by the law in the court where the trial is had. Perhaps, if the 67th section were limited in its application to the pleadings, and the evi
Tbe instruction given by tbe court was, in our opinion, as favorable for tbe appellants as they were entitled to. Tbe instructions asked by tbe appellants were not applicable, as tbe jury were authorized to find from the 2d paragraph of the complaint, and from the evidence, that the purchaser, with the assent of the vendor, had taken advantage of the condition and avoided the sale,- and therefore the question for the jury was not whether the parties might, in law, have enforced the condition, but rather whether .they had not already in fact done so, before the commencement of the suit;. for if the appellants had knowledge of the conditional sale, they could not prevent the parties from complying with the terms of the contract by their attachment proceedings.
We cannot disturb the'judgment upon the question of the sufficiency of the evidence to sustain the finding, as the election of the vendee to return the horse, and the claim of title by the vendor, would authorize the verdict.
The judgment is affirmed, with costs.