Rhodes Burford Furniture Co. v. Mattox

McCabe, J. The appellant sued the appellee to enjoin a judgment alleged to have been recovered by appellee against appellant before a justice of the peace. An emergency was alleged in the complaint, making it proper for the judge to, and he did, grant an emer [373] gency restraining order until a notice could be given appellee and a hearing had for a temporary injunction. The court in term, after hearing evidence in support of the prayer for such temporary injunction, overruled appellants’ motion to continue said restraining order, and dissolved the same, to all of which appellant excepted, has appealed to this court, and assigns those rulings as error. The appellee has moved to dismiss the appeal on the ground that an appeal will not lie from either of such orders. But we can determine the merits easier than the motion to dismiss the appeal, and as that practically reaches the same result, we adopt that course. Section 1148, R. S. 1881, provides that “when it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists, etc., * * * in restraining proceedings upon any final order or judgment, an injunction may be granted to restrain such act or proceedings,” etc. Itwill be observed then, that it is only where it appears by the complaint that the plaintiff is entitled to the relief demanded, etc., in an application for a temporary-injunction against a judgment, etc., that it may be granted. The sole ground on which appellant sought to enjoin the judgment of the justice was that he had tried the case by a jury of twelve, instead of six, as required by section 299, Elliott’s Supp. This was a collateral attack upon the judgment, and it has been settled, by a long line of cases in this court, that for mere error or irregularity in the proceedings and judgment of a court of special and limited jurisdiction, where such court has jurisdiction over the subject of the action and the parties, the judgment can not be collaterally attacked for such error or irregularity any more [374] than if the court was one of general jurisdiction. Argo v. Barthand, 80 Ind. 63; Stoddard v. Johnson, Treas., 75 Ind. 20; Hume v. Little Flat Rock, etc., Ass’n, 72 Ind. 499; Goddard v. Stockman, 74 Ind. 400; Mullikin v. City of Bloomington, 72 Ind. 161; Miller, Treas., etc., v. Porter, 71 Ind. 521; Porter v. Stout, 73 Ind. 3; Houk v. Barthold, 73 Ind. 21; Featherston v. Small, 77 Ind. 143; Board, etc., v. Hall, 70 Ind. 469. Filed May 23, 1893. It was eVen held that a judgment rendered by a justice of the peace was not void when collaterally attacked, though the parties thereto were akin to him, both plaintiffs and defendants, within the sixth degree of consanguinity, in Harbaugh v. Albertson, 102 Ind. 69; and yet section 1433, R. S. 1881, provides that “No justice shall have jurisdiction in any action of slander, for malicious prosecutions, or breach of marriage contract, nor in any action wherein the title to lands shall come in question, or the justice be related by blood or marriage to either party.” The error or irregularity of trying a case by a jury of twelve, instead of six, it would seem, ought not to affect the validity of the justice’s judgment on a collateral attack any more than, if as much'as, his blood relationship to the parties, or any of them. We are of opinion that the judgment of the justice on the collateral attack made in the complaint for an injunction, on the ground that the justice tried the case by a jury of twelve, instead of six, that being the sole ground of attack, was not void for that reason, and hence it did not appear from the complaint that appellant was entitled to the relief demanded, and, therefore, the court below did not err in refusing to continue, and in dissolving the injunction. The judgment is affirmed.