Winchel v. Sullivan

48 Ind. 253

• Court: Indiana Supreme Court
• Decided: November 15, 1874
• Status: Published

Opinion

Worden, J.

Winchel sued Sullivan before a justice of the peace and obtained judgment. Afterward, an execution issued on the judgment was returned not satisfied, and that the defendant had scheduled his property as exempt from execution. The justice certified that the plaintiff had filed with him “ the necessary affidavit to entitle him to a writ of garnishment against the P., C. & St. L. R. W. Co.” Proceedings were then had against the Pittsburg, Cincinnati, and St. Louis Railway Co., and a judgment rendered in favor of the plaintiff against the company for thirty-six dollars and ninety-five cents, and against Sullivan for costs.

Both Winchel and Sullivan appealed from this judgment to the circuit court. In the latter court, Winchel dismissed his appeal. The defendant moved to dismiss the cause for the following reasons, viz.:

“ 1. The justice of the peace had no jurisdiction.

“ 2. The affidavit is not sufficient.

“ 3. There is no complaint.

“ 4. There is no sufficient complaint.”

The court sustained this motion, and the plaintiff excepted.

There is no affidavit or complaint of any kind in the record. In their absence, we must presume in favor of the action of the court below. If the affidavit was not sent up by the justice with the other papers in the cause, a rule on him might have been taken to send it up. But no motion for such purpose was made by the plaintiff. From all that is before us, we can not say that the court below erred.

The judgment below is affirmed, with costs.