Allison v. Hedges

Dewey, J. This was an action on a promissory note, commenced before á justice of the peace, and taken by ap [547] peal to the Circuit Court. The parties appeared before the justice, and the cause was continued. The defendant not appearing on the day set for trial, judgment went against him by default. In the Circuit Court, the plaintiff having established his cause of action under the general issue, the .defendant proved that the justice who tried the action was a justice of Wayne township in Allen county, in which township the action was commenced; and that the defendant, at the time of the service of process, and of the trial, was a resident and householder of Washington township in that county. Upon this proof, the Court dismissed the cause on the ground that the justice had no jurisdiction of it. P. Sweetser, for the plaintiff. II. Cooper, for the defendant. It is contended that the judgment of the Circuit Court is justified by a statute respecting the jurisdiction of justices in Allen county. That statute provides, that a defendant in a civil action, resident in that county, shall be sued in the township in which he resides, if there be a justice therein who can legally try the cause. Laws of 1839, p. 90. It may be questionable whether, under this statute, the defendant, in order to oust the jurisdiction of the justice of Wayne township, should not have carried the proof farther than he did, and have shown that a justice resided in Washington township. But we shall not stop to settle this point, as our decision will turn on another principle. It is enacted in the justice’s act, “ that after an appeal to the Circuit Court, no suit shall be dismissed because the same was commenced out of the proper township, unless objection shall have been made on the hearing of said cause before the justice.” R. S. 1838, p. 366. This provision embraces all cases in which the jurisdiction of the justice depends upon the township in which the action is commenced. As the defendant made no objection before the justice to his right to try the cause, it was too late to urge that matter in the Circuit Court. It was erroneous to dismiss the cause. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.