Sherrod v. Shirley

57 Ind. 13

• Court: Indiana Supreme Court
• Decided: May 15, 1877
• Status: Published

Opinion

Biddle, J.

The appellees, who are administrators, brought this suit before Thomas B. Hall, a justice of the peace, against the appellant, on the following cause of action:'

“Gr. W. Shirley E. Dicks, Adm’rs of the Estate of John A. Dicks, deceased, v. Solomon S. Sherrod.

“ Before Thomas B. Hall, Justice of the Peace of Union township, Hendricks county, Ind.

“ Said plaintiffs complain of the defendant, and say that the defendant is indebted to him,” [them] “ as shown by an itemized account filed herewith, in the sum of forty-two dollars, for which he” [they] “ demand judgment and other proper relief. Account to be filed.”

The venue was changed from Justice Hall to Justice Isaac Burnett, of the same township. The transcript states, that, before Justice Burnett, “the plaintiffs, by their att’y, D. C. Lane, now filed their itemized account,” but no itemized account is found anywhere in the transcript. The appellant then moved to dismiss the cause, for the reason that the itemized account was not “ filed at the proper time.” This motion was overruled by the justice. The appellees next sought and obtained a change of venue from Justice Burnett to Justice James M. "Wells, before whom appellant filed an answer to the complaint. A trial was had upon the issues, and judgment rendered in favor of appellees. From this judgment the appellant appealed to the circuit court, wherein he moved “ to dismiss the cause for want of a sufficient cause of action.” This motion was overruled, and exception reserved.

A jury trial was had, verdict for appellees, and, over a motion for a new trial and exceptions, a judgment rendered. Appeal to this court.

One of the assigned errors is, overruling the motion to dismiss the cause in the circuit court, for want of a sufficient cause of action. Two objections are taken to the cause of action: First, that it does not set out the names of the plaintiffs helow. This is a fatal objection if not cured; but it may be cured by the process, amendment, or by a pleading wherein the names are properly stated. In pleading to the cause of action, by an answer which stated the names of the plaintiffs in full, before justice Wells, the appellant cured this alleged error. Widup v. Gibson, 53 Ind. 484.

But we think the second objection, namely: that the cause of action is insufficient, is well taken. Although no particular formality is required in pleading before a. justice of the peace,, yet the statement must be sufficient to apprise the opposite party of the nature of the claim, and such as could be pleaded in bar to a subsequent action for the same thing. In this case, although the transcript says, that the appellants “filed their itemized account,” yet the items are not given. There is nothing to inform the opposite party of the nature of the claim, nor any thing which could be pleaded in bar of another action. Wolf v. Schofield, 38 Ind. 175; Stephenson v. Ballard, 50 Ind. 176; Crocker v. Hoffman, 48 Ind. 207. We are therefore constrained to reverse the judgment, at the costs of the appellees, to be paid out of assets in their hands yet to be administered.

Judgment accordingly.