State ex rel. Gellinger v. King

Stuart, J. This action is brought on the official bond of King, for failing and refusing to pay over money collected by him as justice of the peace. The record discloses this state of facts. Several creditors proceeded by attachment against the property of one Good. Gellinger filed three several claims of 100 dollars each, accompanied by an affidavit and bond to each claim respectively. King was the magistrate who issued the [440] process. At the trial, Gellinger, the relator, recovered three judgments, for 100 dollars each, against Good, which still remain in force on King's docket. When the attached property was sold, the proceeds were paid over to King. Gellinger’s pro rata was 54 dollars, which, on demand, King refused to pay, upon the ground that Gellinger's claims exceeded the magistrate’s jurisdiction, and therefore the judgments were void. In the Court below, there was judgment for the defendant. Gellinger appeals. The jurisdiction of the justice in attachment is the same as in other cases. 2 R. S. 451.—2 id. 72. To the amount of 100 dollars the jurisdiction is not questioned. But it is contended that under the peculiar wording of section 122, 2 R. S. 473, the filing three claims by one creditor, of 100 dollars each, ousted the jurisdiction. That section reads — “justices may issue writs of attachment against the personal property of a debtor,” &c., “when the amount claimed by any one creditor does not exceed one hundred dollars,” &c. Had Gellinger filed all his demands in one claim, under the same affidavit and bond, the question of jurisdiction would have been clear. The judgment of the justice would have been coram non judice and void. Does the fact of filing three different claims, each within the jurisdiction, and each accompanied with a bond and affidavit, make any difference? We think it does. The phrase “ any one creditor,” may be fairly interpreted to mean any one claiming under the same bond and affidavit. Each claim thus filed is a separate suit. 2 Ind. 296. Under the state of facts presented in this case, we must regard the cases on the question of jurisdiction severally. Gellinger is a creditor in each suit separately. What the effect of a motion to consolidate, in the first instance, would have had on the question, is not before us. Nor is it necessary to decide what would have been the rights of Gellinger, even had the judgments been, as King claims them to be, void. It is sufficient that in the form the question is presented, each claim, with its affidavit and bond, constitutes a single, independent suit, and the plaintiff a separate creditor; and [441] the fact that there are three such claims made by the same party will not be taken notice of, as of course, and in a collateral way, for the purpose of affecting the jurisdiction. Ziegenhager v. Doe, 1 Ind. 296. J. B. Julian, for the state. O. P. Morton and J. M. Wilson, for the appellees. Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.