Ritzman v. Burnham

Temple, J. This is an action brought to recover damages for the conversion of certain horses. Defendant recovered judgment and plaintiff appeals. Among other reasons given by the respondent why the judgment should not be reversed is the claim that the complaint states no cause of action. As I think the claim must be sustained, it will not be necessary to mention other points.

The complaint is not in the usual form for conversion, but proceeds with the narration of certain alleged facts. [524]After an interesting narrative which does not concern this case, it states that defendant sued plaintiff before a justice of the peace for the conversion of a horse, buggy, and harness; that while that action was pending this plaintiff—defendant in that case—moved the court for a change of venue on an affidavit stating that he believed he could not have a fair trial before the said justice by reason of the interest, prejudice, and bias of the said justice. Thereupon the said justice of the peace overruled the said motion for a change of venue, and over the objection of the defendant in that case—plaintiff here—proceeded to try the cause, and rendered judgment for the plaintiff in that case against this plaintiff for one hundred and ninety-five dollars and costs of suit. It is then averred: “ That afterward, on the-day of November, 1893, a so-called execution was issued by said justice on said void judgment to the constable of said township, directing him to levy on and sell the property of said defendant in that action (plaintiff herein), to satisfy said so-called judgment and costs, and said constable, at the instance and request and direction of the said Burnham, caused a so-called levy and sale of five horses, the property of this plaintiff. That the said Burnham ratified said sale and received the proceeds thereof, and converted the said horses and the said money receivéd from a sale thereof to his own use, without right or authority of law, and over the objection of this plaintiff.”

The complaint contains no other averment of any conversion, and manifestly the conversion averred is simply the sale by the constable under execution duly issued upon the judgment recited, and plaintiff claims that it was a conversion on the ground that the judgment against him was void. a

It is also obvious that the ground upon which appellant claims that the judgment rendered against him by the justice was void is, that the motion for a change of venue ousted the justice of jurisdiction. No authority for any such proposition is cited, and I presume