Toledo & Wabash Railway Co. v. Talbert

Erazer, J. This cause originated before a justice of the peace. It was a suit against the appellant for an animal killed by one of its trains of cars. The summons was made returnable at-the'end of ten days from the day of its issue, and was served on a conductor on the day of its date. On the return day the defendant, specially appearing only for that purpose, brought to the knowledge of the justice, by affidavit, the fact that the principal office of the railroad company was not in this state, and thereupon moved to set aside the process and service as insufficient, and to dismiss the case. This motion was overruled ; but, on motion of the plaintiff,-the justice continued the cause, and fixed a time for trial twenty-eight days thereafter. At the time thus appointed the defendant made default, and the plaintiff had judgment for $100. Having appealed to the Circuit Court, the defendant there renewed the motion which had been made before the justice, and it was overruled. The propriety of this ruling is the only question presented. This question is, it seems to us, the same which was decided by this court in Michigan, Southern, etc. Company v. Shannon, 13 Ind. 171. It was there held that, under exactly the same circumstances, the cause could not be dismissed on appeal, the defendant having made no appearance before the justice. This ruling was reaffirmed in the Ohio, etc. Company v. Quier, 16 Ind. 440. The intimation in the first-cited case, that, under the circumstances, it would be the duty of the justice to continue the cause, (as was done in the present case,) would necessarily be sound, if the decision on the principal point was correct. In the case in judgment, the postponement gave sufficient notice to the defendant. It would seem that the postponement must be for fifteen [440] days at least. We do not re-examine the question decided in the cases cited. The rule established by them is a wholesome one, which can not result in iiíjnstice; it is as convenient as any which can be made consistently with existing statutes, and it is therefore proper that the qnes- ■ tion should remain at rest. It is not to he denied, however, that the question was, in the beginning, one of some nicety. W. Z. StuaH, for appellant. James G. McCabe,for appellee. Judgment affirmed, with five per cent, damages, and costs here.