Chapman v. Clevinger

10 Ind. 23

• Court: Indiana Supreme Court
• Decided: December 21, 1857
• Status: Published

Opinion

Perkins, J.

An action for the recovery of personal property, was brought before a justice of the peace. Judgment on appeal in the Circuit Court for the defendant, and for the value of the property not returned by the plaintiff. Motion for a new trial overruled. No exceptions taken in the case.

At a subsequent term, the defendant filed an application to be relieved from said judgment, under section 99, 2 P. S. p. 48.

Demurrer to his application sustained, and final judgment against him.

He claimed that the judgment should be set aside, because the trial of the appeal case in the Circuit Court was without an issue, no answer having been filed. A trial without an issue is undoubtedly erroneous. It is a mistrial. Wilbridge v. Case, 2 Ind. R. 36. But, in the case at bar the error did not exist.

The statute puts in the general issue or denial, except non est factum, in cases before a justice of the peace, without its being specially pleaded, and that issue remains in the Circuit Court on appeal. 2 P. S. p. 455, § 34.—Kinch v. Weatherall, 2 Ind. R. 226.

The only ground taken in the application for setting aside the judgment is, that the party did not know that it was rendered against him. The record shows that he was present at the trial, and on the return of the verdict against him, moved for a new trial and in arrest of judgment, and discloses no reason why he did not know that the judgment was against him.

J. P. Green, for the appellant.

There is nothing in the case.

Per Curiam. — The judgment is affirmed with 1 per cent. damages and costs.