Kinch v. Weatherall

2 Ind. 226

• Court: Indiana Supreme Court
• Decided: October 28, 1850
• Status: Published

Opinion

Smith, J.

Debt by the defendants in error against the plaintiffs in error, commenced before a justice of the peace. The cause of action filed was a lease granted to the defendants below, by the plaintiffs, of certain premises, for an agreed sum per annum, payable quarterly, with an indorsement, stating that the defendants were indebted 90 dollars for rent in arrear. The defendants below filed a plea alleging that they were evicted from a part of the premises by a third person, under a paramount title, and they, therefore, abandoned the premises before the expiration of the lease, and before any part of the rent sued for became due and payable. The justice then certified the case to the Tippecanoe Circuit Court, on the ground that the plea put in issue the title to real estate, under the provision of the Revised Statutes, p. 872. The suit was afterwards transferred to the Tippecanoe Court of Common Pleas. The record states that after several continuances the parties appeared, and “ the issues being joined,” a jury came, who found for the plaintiffs, and assessed their damages at 102 dollars and 31 cents. Motions in arrest of judgment and for a new trial were overruled, and judgment was rendered on the verdict.

J. Pettit and S. Huff, for the plaintiffs. Z. Baird, for the defendants.

The error assigned is, that there was a trial without an issue.

The record does not show that any written replication was filed; but we think the case is to be considered as originating before a justice of the peace, and that, therefore, the omission to file a formal replication, is not sufficient ground to reverse the judgment.

Per Curiam.

'The judgment is affirmed-with costs, &c.