1550. (1482.) How sent and opened.-50. Such depositions shall be sent, under seal, to the justice trying the cause; and may be opened at any time, the parties consenting thereto, or on the day set for trial, on motion of either party.

1551. (1483.) Issues-Jurors.-51. The issues of fact shall be tried by the justice, unless either party demand a jury, which shall consist of six qualified voters of the township, to be summoned by a constable by venire issued by the justice: Provided, however, That the number may be less than six by consent of the parties.

(As amended, Acts 1889, p. 321. Ell. Supp., section 299. In force March 9, 1889.) If two justices sit in the trial of a cause by consent of the parties, the proceedings are not thereby vitiated. Dougherty v. Mason, 4 Blkf. 432.

1552. (1484.) Challenges-Oath of jurors.-52. Either party may challenge for cause, or may peremptorily challenge half the jury; and such jury shall be sworn by the justice truly to try the matter in difference between the parties, and a true verdict to give according to law and evidence.

On appeal the rules of the circuit court govern in the selection of the jury. Vanschoiack v. Farrow, 25 Ind. 310; Kerschner v. Cullen, 27 Ind. 184.

1553. (1485.) Disagreement-Continuance.-54. Whenever a jury, after having consulted together for a reasonable time, shall report to the justice that they can not agree, he shall discharge them, and continue the cause until another day.

The justice, not the jury, is to determine what is "reasonable time" hereunder. Murphy . Wilson, 46 Ind. 537.

[1881 S., p. 503. In force September 19, 1881.]

1554. (1486.) Pay of jurors.-34. Fees of jurors shall be, for each day's attendance before a justice of the peace, one dollar; for each mile necessarily traveled, five cents.

[2 R. S. 1852, p. 449. In force May 6, 1853.]

1555. (1487.) New trial-Notice, etc.-56. New trials may be granted by justices at any time within four days after entering judgment, according to the usages of the circuit court (notice of the motion therefor having been given to the opposite party) unless such motion is made in his presence, or the presence of the agent or attorney who conducted his suit.

A justice has no power to change, vacate, or modify a judgment he has once entered; he can only grant or refuse a new trial, or enter satisfaction upon payment thereof. Foist v. Coppin, 35, Ind. 471; Brown v. Goble, 97 Ind. 86; Leary v. Dyson, 98 Ind. 317. Justices can not grant new trials more than four days after entry of judgment. The rules of the circuit court as to granting new trials after term are not applicable to justices' courts. Vogel v. Lawrenceburgh, etc., Co., 49 Ind. 218.

The adverse party must have notice of a motion for a new trial. Erskine v. Onyett, 11 Ind. 335; Smith v. Chandler, 13 Ind. 513.

An appearance to a motion for a new trial without objection is a waiver of defects therein. Foist . Coppin, 35 Ind. 471.

If a new trial is granted, and by consent of parties the motion therefor is withdrawn, the judgment will remain in force. White v. Griffey, 32 Ind. 97.

If the order granting a new trial is set aside, and a new judgment entered, an appeal may be taken. Tarpy v. Crutchfield, 38 Ind. 58.

If a new trial is ordered the judgment is vacated. Robideau v. Ewing, 5 Blkf. 552. Justices can not grant new trials in criminal actions. Steel v. Williams, 13 Ind. 73; Moore v. State, ex rel., 72 Ind. 358.

An appearance, consenting to a continuance and setting the cause down for trial, is a waiver of irregularities in granting a new trial. State, ex rel., v. Martin, 3 App. 20. The day on which the judgment is rendered should be counted in computing the time within which a new trial may be granted. Hathaway v. Hathaway, 2 Ind. 513.

1556. (1488.) When granted-Day fixed-Notice.-57. When such new trial is granted, the justice shall set a day for the same, and cause at least three days' notice thereof to be given to the party against whom the motion was granted.

1557. (1489.) Judgment-Entry-Signing.-58. When a suit shall be dismissed, judgment confessed, the verdict of a jury returned, or the defendant be in actual custody, judgment shall be entered and signed immediately; in all other cases, judgment shall be entered and signed within four days after the trial.

Judgments must be signed by the justice in order to be valid. Ringle v. Weston, 23 Ind. 588.

Judgments are not invalid because entered by the justice after the time fixed by statute. Martin v. Pifer, 96 Ind. 245; Cottrell v. Cottrell, 126 Ind. 181; State, ex rel., v. Brewer, 64 Ind. 131. See Burton v. McGregor, 4 Ind. 550.

The judgment must clearly show the amount of the recovery. Hopper v. Lucas, 86

Ind. 43.

If the record shows a final disposition of the cause it is such a judgment as may be appealed from. Britton v. State, ex rel., 54 Ind. 535.

But a mere finding is not a judgment. State, ex rel., v. Brown, 44 Ind. 329. Justices can not vacate or set aside judgments except by granting new trials as provided by statute, but circuit courts may cancel and enjoin the collection of void judgments. Foist v. Coppin, 35 Ind. 471; Brown v. Goble, 97 Ind. 86; Leary v. Dyson, 98 Ind. 317; Penrose v. McKinzie, 116 Ind. 35; Greenwalt v. May, 127 Ind. 511.

Judgments of justices are conclusive between the parties, and can not be collaterally attacked. Reed v. Whitton, 78 Ind. 579; Robinson v. Snyder, 97 Ind. 56; McLaughlin v. Etchison, 127 Ind. 474.

If a justice improperly refuses to grant a change of venue, a judgment rendered by him is void. Smelzer v. Lockhart, 97 Ind. 315.

If a justice is attorney for the plaintiff when he renders judgment, the same will be void. Railway Co. v. Summers, 113 Ind. 10.

Justices may be compelled by mandate to enter judgments upon valid or erroneous verdicts, but not upon void verdicts. Moore v. State, ex rel., 72 Ind. 358; State, er rel., v. Engle, 127 Ind. 457.

This section does not apply to criminal actions. Sturgeon v. Gray, 96 Ind. 166; Wright v. Fansler, 90 Ind. 492.

1558. (1490.) By confession.-59. Judgments may be rendered by confession, and no appeal shall lie therefrom, but the same may be collaterally impeached for fraud by creditors of the judgment debtor; and such judgment shall be void as to such creditors unless at the

time of the rendition thereof the defendant makes affidavit that he justly owes the debt.

Judgments by confession are valid between the parties without affidavits as to the justness of the debt. Kennard v. Carter, 64 Ind. 31; Mavity of Eastridge, 67 Ind. 211; McAlpine v. Sweetser, 76 Ind. 78; Hopper v. Lucas, 86 Ind. 43; Chapin v. McLaren, 105 Ind. 563.

An appeal does not lie from a judgment confessed under this section. Mariner v. Hanna, 16 Ind. 23.

Subsequent creditors of the debtor may impeach judgments by confession for fraud, when no affidavit is filed as required by statute. Feaster v. Woodfill, 23 Ind. 493.

One partner can not confess a judgment against the firm, but the judgment will be good against the party confessing. Hopper v. Lucas, 86 Ind. 43.

As to what is a sufficient entry of confession of judgment, see Dragoo v. Graham, 17 Ind. 427; Barnett v. Juday, 38 Ind. 86; Mavity v. Eastridge, 67 Ind. 211.

1559. (1491.) Balance in favor of defendant-Judgment.-60. If there shall appear a balance in favor of the defendant, judgment for the amount, not exceeding the jurisdiction of the justice, shall be entered in his favor.

1560. (1492.) By default.-61. If the defendant, being legally notified, fail to appear, judgment may be entered against him by default, upon proof heard, for the amount of the plaintiff's demand.

If summons is served and judgment rendered by default before the return day, such judgment is not void, but valid until set aside. McAlpine v. Sweetser, 76 Ind. 78. The return of the officer as to service of process is conclusive between the parties. Hume v. Conduitt, 76 Ind. 598.

Failure to copy the process, or return thereon, in the docket, does not render a judgment by default invalid. Taylor v. McClure, 28 Ind. 39.

1561. (1493.) Default, how set aside.-62. Such judgment by default may be set aside on motion, at any time within ten days thereafter on payment of all costs, the defendant first filing his affidavit showing a good defense to the action; and when so set aside, the justice shall set a day for trial, and cause at least three days' notice thereof to be given to plaintiff; and if judgment by default shall a second time be entered, it shall not a second time be set aside.

(As amended, Acts 1889, p. 387. Ell. Supp., section 301. In force May 16, 1889.) If one joint judgment defendant procures the judgment to be set aside, it will be set aside as to all defendants unless the entry limits the setting aside to one. Robinson v. Snyder, 97 Ind. 56.

1562. (1494.) Without relief.-86. Where the note or obligation sued on is payable without relief from valuation or appraisement laws, such agreement shall be made a part of the judgment, and shall be noted on the execution, and property sold, without appraisement, to satisfy the same.

1563. (1495.) Purchase of judgment by justice or constable unlawful.-113. No justice or constable of the same township shall, directly or indirectly, purchase any judgment or interest therein on the docket of such justice, or upon any docket in his possession; and any

such purchase shall operate as a satisfaction of such judgment, to the extent of the interest therein purchased.

This section in so far as it relates to constables is invalid. Spaugh v. Huffer, 14 Ind. 305.

1564. (1496.) Judgment collected-To pay over.-114. Justices shall receive all money collected on process by them issued, and all money tendered them on any judgment on their docket, or any docket in their possession, and shall pay over the same, on proper demand, to the person authorized to receive the same; and for failure so to pay the same, he shall be liable on his official bond for such money, with interest thereon from the time of such demand, and twenty per cent. in damages in addition.

Satisfaction of a judgment entered and signed is prima facie evidence that the justice has collected the money. Modisett v. Governor, 2 Blkf. 135.

Nothing but lawful money can be received in payment, without special authority. Hooker v. State, 7 Blkf. 272.

A justice may receive, receipt for, and pay over costs taxed by him. Herod v. Snyder, 61 Ind. 453.

If a justice collects a claim left with him for collection he and his sureties are liable though no suit is instituted. State, ex rel., v. Carter, 6 Ind. 37; Widener v. State, ex rel., 45 Ind. 244.

The justice must be authorized by law to receive the money to render his sureties liable therefor. State, ex rel., v. Woodman, 36 Ind. 511.

In an action on the bond of a justice it must be alleged and proven that the money was received during the period covered by the bond. King v. State, ex rel., 15 Ind. 64; Naugle v. State, ex rel., 85 Ind. 469.

If a justice is charged with the collection of money on judgments, proof of receiving money on claims without suit is not admissible. Hackler v. State, ex rel., 81 Ind. 430. If a justice permits money collected by him to be levied upon and taken under execution, he and his sureties will be liable therefor. Hooks v. York, 4 Ind. 636.

A demand is necessary before suit upon the bond, for money collected by the justice. State v. Harding, 5 Blkf. 504; Parker v. State, 8 Blkf. 292.

1565. (1497.) Satisfaction of judgment.-115. Any person alleging satisfaction, in whole or in part, of any judgment on a justice's docket, may file his complaint in writing, showing specifically in what manner such satisfaction was made; and summons for the other party shall be issued and served, and the complaint heard and determined, and satisfaction entered or refused, as in other cases; and pending such suit, execution on such judgment shall be re-called, on the plaintiff in such complaint giving bond and surety in double the amount of such judgment, payable to the defendant in such complaint, and conditioned for the payment of the judgment, if his complaint be determined against him.

1566. (1498.) Revival of judgment.-120. Judgment in favor of any deceased person may be revived in favor of his personal representatives, on complaint and summons as in other cases.

1567. (1499.) Appeal-How taken.-64. Any party may appeal from the judgment of any justice to the circuit court of the county, within thirty days from the rendition thereof; and when there are two

or more plaintiffs or defendants, one or more of such plaintiffs or defendants may appeal without joining the others in such appeal.

As to time for appeal, the day of entering judgment is excluded from the thirty days allowed. Noble v. Murphy, 27 Ind. 502; Faure v. Express Co., 23 Ind. 48.

If on filing a bond the justice is told not to send up the papers until further orders, the appeal will be considered as taken when the order to transmit the papers is given. Baumbauer v. State, 76 Ind. 351.

An appeal suspends all further proceedings under the judgment. Young v. State, 34 Ind. 46; Britton v. Fox, 39 Ind. 369; Miller v. O'Reilly, 84 Ind. 168; Hunter v. Thomas, 51 Ind. 44.

Appeals may be taken from all judgments finally disposing of the cause though the judgment may be void. Palmer v. Fuller, 22 Ind. 115; Todhunter v. Marshall, 32 Ind. 96; Lauferty v. Prickett, 50 Ind. 24; State, ex rel., v. Brewer, 64 Ind. 131.

There must be a judgment, an appeal can not be taken from a finding. State, ex rel., v. Brown, 44 Ind. 329.

If a defendant is subpoenaed by the plaintiff and fails to appear and judgment is entered, the defendant may appeal. Mariner v. Hanna, 16 Ind. 23.

If a suit is dismissed for non-appearance of the plaintiff, he may appeal. Lauferty . Prickett, 50 Ind. 24.

Hobbs v. Cow

One of several defendants may appeal. Goodhue v. Palmer, 13 Ind. 457. This section applies to all civil actions before justices of the peace. den, 20 Ind. 310.

An appeal may be taken by the defendant after payment of the judgment. Armes v. Chappel, 28 Ind. 469.

This section applies to prosecutions for bastardy. Reed v. State, ex rel., 66 Ind. 70. An appeal can not be taken from an attachment alone. It must be from the whole case. State, ex rel., v. Miller, 63 Ind. 475.

Failure of the justice to note on his docket the taking of an appeal does not affect the same. Unruh v. State, ex rcl., 105 Ind. 117.

1568. (1500.) Appeal bond.-65. The appellant shall, except in cases where the same is dispensed with by law, file with the justice a bond with security to be approved by the justice, payable to the appellee, in a sum sufficient to secure the claim of the appellee and interest and costs, conditioned that he will prosecute his appeal to effect, and pay the judgment that may be rendered against him in the circuit

court.

An appeal bond without a surety is insufficient. Indianapolis, etc., R. R. Co. v. Beam, 63 Ind. 490.

If the bond is insufficient a new one may be filed in the circuit court. Murphy v. Steele, 51 Ind. 81.

If no bond is filed before the justice, the appeal can not be perfected by filing one in the circuit court. Crumley v. Hickman, 92 Ind. 388.

Poor persons can not be authorized to take an appeal without the filing of a bond. State, ex rel., v. Delano, 37 Ind. 249.

It is not necessary that all of the judgment defendants should sign the appeal bond. Covert v. Shirk, 58 Ind. 264.

When a bond is filed and accepted by the justice, he has no longer jurisdiction over the cause. Miller v. O'Reilly, 84 Ind. 168; State, ex rel., v. Cressinger, 88 Ind. 499. The justice need not indorse his approval on the bond, his acceptance thereof is sufficient. Miller v. O'Reilly, 84 Ind. 168.

The approval of the bond by the justice may be shown by parol. McCrory v. Anderson, 103 Ind. 12.