Krohn v. Templin

2 Ind. 146

• Court: Indiana Supreme Court
• Decided: May 15, 1850
• Status: Published

Opinion

KROHN had obtained a judgment before a justice of the peace against Templin. Afterwards, he, Krohn, filed an affidavit with the justice in order to have a capias ad satisfaciendum issued on the judgment.

T. J. Sample and J. Kennedy, for the plaintiff. W. March, for the defendants.

The justice, thereupon, issued a summons requiring Tcmplin to appear and show cause why a capias ad satisfaciendum should not issue as applied for by Krohn.

The summons was dated on the 15th of June, 1849, and made returnable on the 25th of the same month.

Tcmplin, before appearing to the application, moved the justice to set aside the summons as insufficient. The motion was overruled.

The case was tried, and verdict and judgment rendered for the defendant.

The plaintiff appealed to the Circuit Court.

The defendant moved the Circuit Court to dismiss the suit on account of the insufficiency of the summons. The plaintiff objected to the motion, but the Court overruled the objection, and dismissed the case.

'We think this judgment is erroneous. The language of the statute on the subject is as follows: “Every such summons shall be made returnable in ten days from the date thereof, and shall be served,” &c. R. S. p. 906, s. 265.

As the summons issued on the 15th of June, and was returnable on the 25th of the same month, the time was within the statute.

The judgment is reversed with costs. Cause remanded for further proceedings. Costs here.