diction. Baragree v. Cronkhite and Others. The offender could have been held to bail to an swer in the criminal court at its next term. The judgment is affirmed. D. E. Williamson, Attorney General, and A. L. Robinson, for the State. J. M. Shackelford and W. F. Parrett, for appellee. SCOTT and Another v. GREEN. APPEAL from the Carroll Common Pleas. RAY, J.-Suit by Green against Alexander Chittick, on a note. John Scott and Mrs. Elizabeth Chittick were garnishees. Judgment by default against the debtor, and a joint judgment against the garnishees, from which the latter appeal. The question presented is on the evidence, and, after a careful examination, we find no proof showing any indebtedness from the garnishees to the judgment defendant at the date of the service of the writ upon them. The judgment against the appellants John Scott and Elizabeth Chittick is reversed, and the cause remanded for a new trial as to them. Costs here. B. B. Daily, D. B. Graham, S. E. Perkins, L. Jordan, and S. E. Perkins, Jr., for appellants. J. Applegate, for appellee. 33 192 134 268 33b 192 140 135 33b 192 155 593 BARAGREE V. CRONKHITE and Others. INJUNCTION.-Justice of the Peace.—Appeal.—An injunction will not lie to restrain proceedings on a judgment rendered by a justice of the peace, where Baragree v. Cronkhite and Others. the party seeking the injunction has had an opportunity to take an appeal from the judgment, and full relief could have been obtained on such appeal; or where, by an application to the circuit court or court of common pleas, an appeal may be authorized after the lapse of the time limited therefor, under section 68, 2 G. & H. 597. SAME.-Attachment.-An injunction will not lie in favor of the defendant in attachment to restrain proceedings on a judgment rendered against him therein, where a part of the indebtedness for which the judgment was rendered is admitted to be due, and no offer is made to pay such portion. APPEAL from the Warren Common Pleas. This was a suit by the appellant against the appellees for an injunction. The complaint was in two paragraphs, the first of which alleged, that on the 6th of March, 1867, the plaintiff left his residence in said Warren county and went to Lafayette and Fort Wayne, Indiana, for an indefinite period of time; that he returned home on the 21st of the same month; that during his said absence the defendant Cronkhite, on the 11th of March, commenced an action against the appellant, before the appellee Tharp, a justice of the peace of said county, and on the same day said justice issued a summons in favor of said Cronkhite and against the appellant, which was made returnable on the 15th of March, 1867; that said summons was delivered to the appellee Shanks, a special constable appointed by said justice, to be served; that at the time said constable received said summons, and at the time he pretended to serve it upon the appellant, it was well known to said Cronkhite, and said justice, and said consta-ble, that the appellant was absent from home for an indefinite period of time; and that fact was well known to them. also at the time judgment was rendered by said justice against the appellant and in favor of said Cronkhite, on the 15th of March, 1867; that there was no other service or pretended service of notice to the appellant of the pendency of said action than a copy of said summons left at the house of the appellant by said constable, during the said absence of appellant from home for an indefinite period, which was also VOL. XXXIII.-13 Baragree v. Cronkhite and Others. well known to said justice and said Cronkhite at the time said justice rendered said judgment; that on the 13th of March, 1867, Cronkhite, upon affidavit and bond filed with said justice, procured him to issue a writ of attachment against the property of the appellant, which writ was placed in the hands of said constable for service, upon which said constable attached all the property of the appellant, amounting to about five hundred dollars, which was by said justice ordered to be sold; that the appellees Robert Hamilton, William L. Hamilton, and Hanmon, filed claims and affidavits and bonds in attachment against the appellant under said proceeding instituted by Cronkhite, and, upon the same kind of service as that had in favor of Cronkhite, all of said plaintiffs, having full knowledge at the time of service that appellant was absent from home for an indefinite period of time, caused and procured said justice to render judg ment in their favor against the appellant; and said justice and said plaintiffs, with full knowledge of all the facts aforesaid, rendered, and caused to be rendered, a judgment and order for the sale of the appellant's property attached; which order was placed in the hands of said constable for service; that said constable had caused said property to be advertised for sale on the 1st of April, 1867, and the appellees were threatening to sell the same at that date; that the appellant had no knowledge of said proceedings, until his return on the 21st of March, and made no appearance to said action, nor did any one appear thereto on his behalf; that said proceedings were unlawful, oppressive, and of great damage to appellant; wherefore, &c. The second paragraph is like the first, with the additional averments, that the plaintiffs in said attachment proceeding combined and confederated together to sue him in his absence from home, and without his knowledge take judg. ments against him upon claims, some due and some not due, and attach his property and sacrifice it; in pursuance of which purpose, the acts, set forth as in the first paragraph, were done, with the full knowledge on the part of City of Columbus and Others v. Storey and Others. the justice, constable, and plaintiffs that appellant was absent from home for an indefinite period. The court sustained a demurrer to each paragraph of the complaint, for want of sufficient facts, and this is assigned as error. RAY, J.-According to the dates given, an appeal could have been taken from the judgment rendered by the justice, and full relief obtained on such appeal. But if this were otherwise, section 68, p. 597, 2 G. & H., affords the proper remedy, that is, by an application to the circuit court or court of common pleas, where an appeal may be authorized after the statutory limit for taking the same has been passed without the fault of the party asking the relief. But in the case before us no right to the interposition of a court of equity is shown, as a part, at least, of the indebtedness is admitted to be due, and no offer is made to pay such portion. Judgment affirmed, with costs. J. H. Brown and G. D. Wagoner, for appellant. CITY OF COLUMBUS and Others v. STOREY and Others. - INJUNCTION. City.-Street Improvement.-The common council of a city by ordinance changed the grade of a street, bordering upon which was a valuable mill property, in front of which the street was cut down, in making said change, about twenty-one inches, so that about twenty-five dollars would be the expense of restoring as convenient access to the mill yard as existed before the change. Suit by the owner of said mill property to enjoin the completion of the work, the complaint being filed after the street had been so cut down and when, in order to complete the work, it only remained to put on the gravel, said owner's damages occasioned by the change not having been assessed or tendered to him. Held, that there was no ground for an injunction. APPEAL from the Bartholomew Common Pleas. City of Columbus and Others v. Storey and Others. GREGORY, C. J.-This is an appeal from an interlocutory order restraining the defendants from completing the grade of Harrison street, in the city of Columbus. The case was heard on affidavits filed by the parties. The complaint is, that the Common Council of the city of Columbus have by ordinance changed the grade of Harrison street; that Storey is the owner of a valuable mill property bordering thereon; that by the change of grade the access from the street to the mill yard is obstructed; that Storey will thereby sustain irreparable damage; that the defendants are progressing with the work according to the grade as changed; that the plaintiff's damages have not been assessed and tendered to him. The facts, as disclosed on the hearing, do not make a case for an injunction. The cut along Storey's property is only about twenty-one inches; and a very small expense, not to exceed twenty-five dollars, will restore the access to the mill-yard, making it as convenient as it was before the change. At the time this complaint was filed, the street had been cut down the full depth required by the change, and it only remained to put on the gravel to complete the work. The damage to the appellee Storey would have been greater by leaving the street in that condition, than by completing the work by putting on the gravel. It may be that Storey has a right of action growing out of the fact that his damages resulting from the change of grade were not assessed and tendered him before the work was done. But, clearly, a court of equity ought not to interpose by injunction to prevent the completion of the improvement of Harrison street according to the new grade. It is the duty of the court to look to consequences, before granting an injunction. The order granting an injunction is reversed, at the costs of appellees. Cause remanded for further proceedings. S. Stansifer and F. Winter, for appellants. R. Hill and G. W. Richardson, for appellees. |