Capp v. Gilman

2 Blackf. 45, 1827 Ind. LEXIS 6

• Court: Indiana Supreme Court
• Decided: May 9, 1827
• Status: Published

Opinion

Holman, J.

The action was brought by Gilman in the Franklin Circuit Court, on a judgment obtained in the Court of Common Pleas of Hamilton county, state of Ohio.- The declaration states the recovery of the judgment, as by the record thereof, noto-remaining in the said Court of Common Pleas, more fully appears. This is sufficient even on special demurrer. Oyer of a record is never granted. Rex v. Amery, 1 T. R. 149

(1). The second and fourth causes of demurrer are removed by a slight view of the whole declaration. The plaintiff names himself as administrator unnecessarily. He sites on a judgment recovered in his own name, on promises made to himself. The word administrator may therefore be considered as surplusage, or as a descriptiopersoné. The same answer may be given to the objection, that the judgment is rendered for the plaintiff as administrator (2).

The only point on which we have hesitated, is the third cause of demurrer; the want of a venue. The necessity of a venue is to give jurisdiction, and to show from whence the jury are to come. Here the declaration contains “Franklin county and circuit,” as a marginal venue, and -proceeds to show that the defendant was indebted to the plaintiff, by virtue of a judgment of a Court of record, in the state of Ohio. ' By virtue of this judgment, the defendant became indebted to the plaintiff, and might he sued in any place where he could he found. Franklin Circuit Court therefore had jurisdiction of the case; as it must he intended that, if he was found in the Franklin Circuit, he was there indebted to the plaintiff. This isAendered as certain as if the marginal venue was repeated, or a reference made to it, in the body of the declaration. . The Court in which the judgment was obtained is properly set out, and to have added under a videlicet that it was obtained in the Franklin Circuit, was unnecessary, as the record is not tried by a jury hut by the Court. We are therefore of opinion that the venue in the margin is at any rate sufficient. See 1 Chitt. on Pl. 269, 281 (3).

Caswell, for the plaintiff.

Per Curidm.

The judgment is affirmed, with 5 per cent; damages and costs.

Vide Harlow v. Becktle, Vol. 1. of these Rep. 237.

Vide Savage v. Meriam, Vol. 1. of these Rep. 176, and note.—Helm v. Van VFleet, Ibid. 342.

The county in the margin of the declaration held a sufficient venue, on special demurrer. Duncan v. Passenger, 8 Bing. 355.