Hinsey et ux. v. Feeley.

The only question arising upon the evidence is as to its sufficiency to sustain the verdict.

On the motion for a new trial, as has been seen, no objection was made to the admission or rejection of any testimony.

As the evidence comes to us in the record, it does not impress us as having made a strong case, by any means, for the appellees. There was a sharp conflict in the testimony as to many of the material facts involved in the contest, and we cannot say that, upon the whole case, the weight of the evidence was not seemingly against the verdict. But it is not our province to weigh the evidence. There was evidence fairly tending to sustain the verdict. Under such circumstances we cannot set aside the verdict because of any apparent weight of evidence against it. Simpson v. Payne, 58 Ind. 431; Christy v. Holmes, 57 Ind. 314; Cox v. The State, 49 Ind. 568; The M. & I. R. R. Co. v. Taffe, 37 Ind. 361.

We see no available error in the record.

The judgment is affirmed, at the costs of the appellants.

HINSEY ET UX. v. FEELEY.

ACTION TO DECLARE JUDGMENT VOID.-Married Woman.-An action can not be maintained by a married woman to have a personal judgment rendered against her upon a simple contract declared void, though her coverture and the nature of the indebtedness appear upon the face of the complaint in such case.

SAME.-Review of Judgment.—Justice of the Peace.-The proper remedy in such case is by an action to review such judgment.

Query: Can a review be had of a judgment rendered by a justice of the

peace?

From the Tippecanoe Circuit Court.

Hinsey et ux. v. Feeley.

F. W. Coombs and A. Parsons, for appellants.

J. F. McHugh, for appellee.

PERKINS, J.-This was a suit to obtain a judgment declaring void a certain other judgment, a transcript of which was filed with the complaint.

The facts are these :

Patrick Feeley commenced suit on an account for goods sold and delivered, against Samuel Hinsey and Maria, his wife, and procured a writ of attachment. Seven dollars were made by the attachment proceeding.

On the 24th day of February, 1870, the defendants appeared by counsel, and the cause was continued to the 26th of March, 1870. On that day the defendants were defaulted, and a personal judgment was rendered against the defendants, Samuel Hinsey and Maria A., his wife, the record showing that the said Maria was a married woman, the wife of said Samuel. The judgment, as we have seen, was upon simple contract, and was for forty-three dollars and fifty cents.

On the 29th of March, 1870, a transcript of the judg ment was filed in the office of the clerk of the court of common pleas of said county, that it might become a lien upon the real estate of said Maria A. Hinsey. The complaint in this cause, praying that said judgment might be declared void as against said Maria, for the reason that it appeared upon its face to have been rendered against a married woman upon contract, was filed in the Tippecanoe Circuit Court on the 11th day of August, 1876, and on the 13th day of January, 1877, that court sustained a demurrer to the complaint, and rendered final judgment against the plaintiffs. Exception was entered.

Counsel for appellee in his brief says:

"The proposition for the determination of the court is this: Where a complaint shows upon its face that one of the defendants is a married woman, is it necessary for her

The Louisville, New Albany and Chicago R. W. Co. v. Thompson.

to set up her coverture as a defence? We say it is—that she must set it up by way of answer or demurrer to the complaint; otherwise it is waived."

It was decided by this court, in Emmett v. Yandes, 30 Ind. 548, that a personal judgment against a married woman, where the coverture appeared upon the face of the complaint in the cause, was erroneous and might be reversed upon a complaint for review.

But such a judgment is not void, and can not be attacked collaterally. The court had jurisdiction of the subject-matter and persons. The present is not a suit for review and reversal of the judgment, but to have it declared a nullity-void. Such a suit can not be maintained while the judgment remains in force. Perhaps the judgment in this case, having been rendered before a justice of the peace, could not be reviewed, but this question is not now presented; and it might have been appealed from.

There was no error in sustaining the demurrer to the complaint.

The judgment is affirmed, with costs.

THE LOUISVILLE, New Albany AND CHICAGO R. W. Co. V. THOMPSON.

RAILROAD.-Action to Compel Agent to Pay Money on Judgment for Stock Killed.-Process.-Notice.- Waiver.-Practice.-In a proceeding against a railroad company, under section 5 of the act of March 4th, 1863, 1 R. S. 1876, p. 751, in relation to killing stock, to procure an order upon an agent of the defendant to pay certain moneys, in and coming into his hands, upon a judgment theretofore rendered in favor of the plaintiff, against the defendant, for stock killed, service was had upon the company by a copy of the notice left with a conductor of a train on said road," and the defendant, appearing specially, moved "to set aside the notice " defendant, for the reason that said notice is insufficient.

upon the

The Louisville, New Albany and Chicago R. W. Co. v. Thompson.

Held, that such motion was too vague, indefinite and uncertain.

Held, also, that service of summons in such action should be in accordance with the requirements of section 3 of such act.

SAME.-Appearance.- Waiver.-Where, in such case, appearance in full is entered to the action by the defendant, on behalf of such agent, notice to the latter is waived.

SAME.-Defective Process in Original Action.—A motion in such case to set aside the notice to the defendant because of an alleged defect in the summons and the service thereof in the action in which such judgment was rendered, but which fails to show that the defendant had not appeared to that action, is insufficient.

From the Owen Circuit Court.

T. J. Jackson, for appellant.

W. A. Montgomery, J. C. Robinson and J. H. Fowler, for appellee.

Howk, J.-On the 30th day of November, 1875, a written notice to the appellant in this case was issued by the clerk of the Owen Circuit Court, under his hand and the seal of said court, in substance as follows:

The appellant is hereby notified, that, as the appellee, Keller Thompson, on the 9th day of October, 1875, obtained a judgment in said circuit court, against the appellant, for the killing of five head of cattle, he, the appellee, will make a motion, on the first day of the December term of said court, asking for an order against one William F. Leming, one of the appellant's agents, to compel him, as such agent, to pay into court money, from time to time, until said judgment and costs are paid.

The notice thus issued was returned by the sheriff of Owen county as follows, to wit: "Served on the within named company, by a copy left with a conductor of a train on said road, December 3d, 1875."

At the December term, 1875, of the court below, the appellant appeared specially and moved the court in writing as follows:

"Comes now the defendant and moves the court to set aside the notice upon said defendant to answer by her

The Louisville, New Albany and Chicago R. W. Co. v. Thompson.

agent and to pay into court money, from time to time, upon a judgment claimed to have been recovered by said Keller Thompson, for the reason that said notice is insufficient, and that said defendant had no notice of said suit of said Keller Thompson in said court, at the October term thereof, and that there was no summons directed to said defendant from said Owen Circuit Court, and that the return of said sheriff of Owen county thereto is an insufficient return; and said defendant makes, as part of this motion, a copy of said summons and return."

The summons, made a part of said motion, was directed to the sheriff of Owen county, and commanded him to summon "Louisville, New Albany Railway Company to appear, etc. The sheriff's return on said summons was as follows:

'September 22d, 1875. Served this day by commencing to read the same to Thomas Hanlon, a conductor of a train on defendant's road, informing the said Hanlon that the same was a summons, and also by tendering a copy thereof to said Hanlon; the said Hanlon refusing to hear this summons read, and also refusing to accept or receive

The appellant's motion on special appearance was overruled by the court, and to this ruling the appellant excepted, and filed its bill of exceptions. Whereupon the appellant appeared fully and waived the issue and service of a writ on its agent, William F. Leming, who appeared and answered under oath as to the amount of money in his hands, and also as to the probable amount of money coming monthly into his hands, belonging to the appellant.

Upon this answer the court ordered, adjudged and decreed, that the said William F. Leming, the appellant's agent, should pay into court, of the money in his hands be longing to the appellant, at the end of thirty days, the sum of fifty dollars, and at the end of sixty days the balance

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