Hunter v. Thomas

28 Ind. 448

• Court: Indiana Supreme Court
• Decided: November 15, 1867
• Status: Published

Opinion

Ray, J.

— This was a suit commenced before a justice. An answer was filed charging the violation of a contract by the appellant, who was plaintiff below, and asking a judgment for damages over and above the amount claimed by the appellant. This answer was rejected by the justice, on motion, and judgment was rendered for the plaintiff'.'

The case was taken to the Court of Common Pleas, and the plaintiff' there moved to dismiss “the case.” This motion was overruled. It is insisted, that although the answer had been rejected by the justice, it became pai’t of “the case” in the Court of Common Pleas. We do not concur in this view. The Court of Common Pleas could not. review the action of the justice. The papers belonging to the case in that court were such as the action of the justice left as forming the issues. The Common Pleas could not reverse his action in rejecting the answer, as a court for the correction of errors. If the answer was to be regarded as a paper in the case, it could only have become so by being re-filed. This was not done. The appellant, therefore, had a right to dismiss the case, and his motion should have been sustained.

B. F. Gregory and J. Harper, for appellant. J. Park and L. T. Miller, for appellee.

The judgment is reversed, with costs, and the cause remanded, with directions to sustain the motion to dismiss.