Oungst v. Dils

4 Ind. 545, 1853 Ind. LEXIS 196

• Court: Indiana Supreme Court
• Decided: December 23, 1853
• Status: Published

Opinion

Perkins, J.

Scire facias upon the transcript of a judgment of a justice of the peace filed to bind real estate.

There were two returns of “ not found,” in the Warren Circuit Court, and judgment by default awarding execution.

The scire facias states that the transcript of the judgment of the justice, (being a judgment for a fraction over 20 dollars), was filed in the clerk’s office on the 31st day of January, 1849; that it appeared from said transcript that an execution had issued on said judgment and been returned no property, &c., in December, 1841; and that said judgment was in force, &c.

The scire facias shows, therefore, that more than two years elapsed from the return of execution, no property found, to the filing of the transcript in the clerk’s office.

But, as we understand sections 148, 150, and 157, pp. 887 and 888 of the R. S. of 1843, Circuit Courts had, under said statutes, no jurisdiction in cases of scire facias on transcripts of justices of the peace to bind real estate, where said transcripts were not filed within two years from the rendition of the judgment, or the return of the execution that no property could be found, &c.

B. F. Gregory, for the plaintiff. R. A. Chandler, for the defendant.

Per Curiam.

The judgment is reversed with costs. Cause remanded, with leave to the plaintiff to amend the writ of scire facias, &c.