
    Brickley v. Heilbruner and Others.
    
      A. was sued individually for a debt, before a justice of the peace of a different township from that in which he resided, there having been a justice of the peace, at the time, in the latter township, competent to act. A summons was issued and served upon A., and having not appeared to the action, judgment was rendered against him, by default. An execution having issued, held, in a proceeding to set aside the execution and vacate the judgment’ that the judgment was invalid.
    
      Friday, May 30.
    APPEAL from the Marion Court of Common Pleas.
   Davison, J.

Complaint to set aside an execution, &c. The case is this:

On the 18th of June, 1853, the appellees filed their cause of action against Brickley, before Nelson Kellogg, a justice of the peace of Harrison township, in Wells county. The justice thereupon issued a summons, directed to any constable of said township, returnable before the justice on the 21st of June, which writ was returned, “served by reading;” and Brickley not appearing on the day named in the summons, was defaulted, and judgment given against him, upon which a fieri facias was issued, and returned nulla bona. After this a transcript of the aforesaid judgment was filed in the office of the clerk of the Common Pleas, and an execution was issued thereon from said Court against Brickley’s property. When the above cause of action was filed, summons served, and judgment rendered, Brickley was a resident of Rock Greek town ship in said county, and there was at all the times aforesaid, in that township, a justice competent to act, &c. It is alleged that Kellogg, being a justice of Harrison township, had no jurisdiction of the person against whom he rendered judgment, because that person was a resident of another township. The complaint prays that the execution issued from the Common Pleas be set aside, and the judgment of the justice vacated. Upon final hearing the Court dismissed the cause, &c.

The proceedings before the justice were in evidence. They show affirmatively that he had jurisdiction of the person as well as the cause. The validity of the judgment could not, therefore, be questioned collaterally. But the present is a direct proceeding, in which the judgment itself is sought to be annulled. It follows that the record involves the inquiry, whether the justice had or had not jurisdiction of the person.

Upon this subject there have been various enactments. By an act of 1831, it was provided that—“ No person shall be bound to answer any summons or capias,” &c., “issued by a justice, in civil cases, in any other township than the one in which the defendant resides, or where the debt was contracted, or where the defendant may be found,” &c, E. S. 1831, p. 299. Under this provision it was held that “the defendant in a justice’s Court, may show, under the general issue, that process had not issued in the proper township.” 4 Blackf. 161, 168. The revision of 1838 contains a similar enactment, with the addition “that after an appeal to the Circuit Court, no suit shall be dismissed because the same was commenced out of the proper township, unless the objection shall have been made on the hearing before the justice.” E. S. 1838, p. 366. In accordance with the latter statute, it was decided that unless the defendant in a justice’s Court, sued out of his township, raised the objection before the justice, he waived it. Allison v. Hedges, 5 Blackf. 546. The revision of 1843 is in effect the same as that of 1831. The present code is as follows:

“ The jurisdiction of justices, in civil cases, shall, unless otherwise provided by law, be limited to their townships respectively.” “ No person shall be sued before any justice, out of the township where he resides, except as hereinafter specified, unless such suit is commenced by a capias ad respondendum, or when there shall be no justice in such township competent to act,” &c. “ Suits may be instituted before justices by agreement or process, and except in cases otherwise provided, such process shall be a summons.” 2 E. S., p. 451, 453. The code points out the exceptions above indicated; but the case before us is not within either of them.

E. R. Wilson, for the appellant.

J. P. Greer, for the appellees.

It then remains to be considered whether, under the facts stated in the record, the justice had authority to render the judgment? Allison v. Hedges, supra, does not apply, because that decision is based upon a statute essentially dissimilar to the one governing this case. Had Brickley appeared before the justice and submitted to a trial, without making the point as to the jurisdiction, it may be that that objection would not now avail him. But he was not a resident of the township where the suit was brought. In, his township there was a justice competent to act. He did not appear to the action. Was he bound to do so for any purpose, even that of contesting the jurisdiction? The code declares that “no person shall be sued out of the township where he resides.” This language applies to the case under consideration. It admits of but one interpretation. For the debt sued on, Brickley, at the time of suit, was liable before a justice in his own township, and not elsewhere. The result is, Kellogg proceeded without the scope of his authority. The summons was therefore a nullity; and we know of no rule or principle of law that required Brickley to answer it. Hence, it seems to us, that the judgment is invalid.

The prayer of the complaint should have been granted.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  