Right v. Martin

Indiana Supreme Court

Right v. Martin

11 Ind. 123

CourtIndiana Supreme Court

DecidedNovember 24, 1858

StatusPublished

Cited by7 cases

This text of 11 Ind. 123 (Right v. Martin) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Right v. Martin, 11 Ind. 123 (Ind. 1858).

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Opinion

Worden, J.

This was a proceeding by the appellees against the appellants, in the Common Pleas, to procure execution against certain lands, upon a judgment rendered by a justice of the peace, on the 25th of August, 1839.

The defendant filed an answer of several paragraphs.

Trial by the Court, finding for the plaintiffs, and judgment awarding execution.

Numerous objections are made to these proceedings, but we shall only notice one, as that is decisive of the case.

The defendants answered, amongst other things, that the judgment was rendered more than fourteen years before the filing of the transcript, and that the transcript was filed without any revival of the judgment; wherefore no lien attached, &e.

This we regard as a substantially good plea of the statute of limitations, although not formally so. A demurrer was sustained to this paragraph, and exception taken. It would have been more technical and correct if the pleader had shown that more than six years had elapsed after the rendition of the judgment and before the repeal of the limitation law of 1843; but we regard the above as sufficient, as it appears affirmatively, by the complaint, that the judgment was rendered in August, 1839, and the transcript not filed in the Common Pleas until October, 1853, nor the suit commenced until April, 1856.

By the act of 1843, R. S. 1843, p. 686, § 101, actions on justices’ judgments are limited to six years. This provision was repéaled by an act of Janaury, 1846, but the six years had elapsed before the repealing act was passed, and the repealing act could not renew a liability that had already been extinguished. This point is fully settled by the case of Stipp et al. v. Brown, 2 Ind. R. 647.

The demurrer to this paragraph of the answer should have been overruled.

D. M’Donald and A. G. Porter, for the appellants.

Per Curiam. — The judgment is reversed with costs, Cause remanded for further proceedings,

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Worden, J.

This was a proceeding by the appellees against the appellants, in the Common Pleas, to procure execution against certain lands, upon a judgment rendered by a justice of the peace, on the 25th of August, 1839.

The defendant filed an answer of several paragraphs.

Trial by the Court, finding for the plaintiffs, and judgment awarding execution.

Numerous objections are made to these proceedings, but we shall only notice one, as that is decisive of the case.

The defendants answered, amongst other things, that the judgment was rendered more than fourteen years before the filing of the transcript, and that the transcript was filed without any revival of the judgment; wherefore no lien attached, &e.

This we regard as a substantially good plea of the statute of limitations, although not formally so. A demurrer was sustained to this paragraph, and exception taken. It would have been more technical and correct if the pleader had shown that more than six years had elapsed after the rendition of the judgment and before the repeal of the limitation law of 1843; but we regard the above as sufficient, as it appears affirmatively, by the complaint, that the judgment was rendered in August, 1839, and the transcript not filed in the Common Pleas until October, 1853, nor the suit commenced until April, 1856.

By the act of 1843, R. S. 1843, p. 686, § 101, actions on justices’ judgments are limited to six years. This provision was repéaled by an act of Janaury, 1846, but the six years had elapsed before the repealing act was passed, and the repealing act could not renew a liability that had already been extinguished. This point is fully settled by the case of Stipp et al. v. Brown, 2 Ind. R. 647.

The demurrer to this paragraph of the answer should have been overruled.

D. M’Donald and A. G. Porter, for the appellants.

Per Curiam. — The judgment is reversed with costs, Cause remanded for further proceedings,

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Bluebook (online)

11 Ind. 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/right-v-martin-ind-1858.

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