On Petition for a Rehearing.
Gavin, J.The appellant has filed a petition for rehearing, in which it is argued that the error of the court below consisted in sustaining the objection to a single question asked of a witness on the stand, to show that in the former suit appellee asserted and litigated his claim to the property, and that to make this parol evidence admissible the documentary evidence was unnecessary.
A reference to the record and to the grounds for new trial, as set out in the original opinion, will show that this ruling was not assailed in the motion for new trial. *551except as an incident to, and in connection with, the offer to introduce the record and documentary evidence, without which the oral evidence referred to would have been valueless.
It has been further very earnestly argued by other counsel, that this court erred in holding that the complaint in this case was amendable in the justice’s court. Stress is laid upon the language used in Kiphart v. Brennemen, 25 Ind. 152, and it is urgently insisted that there is no foundation for the distinction made in the original opinion between that case and the cases in 10th Indiana.
A further consideration of the case convinces us that the proposition that the amendment was properly allowed is supported both by sound reason and good authority.
In Converse v. Damariscotta Bank, 15 Me. 431, this practice was approved. The court says: “As the writ originally stood it would not justify the service, but by amending so as to reduce the ad damnum below $100, the service might be justified, and we are of opinion the judge might allow that amendment.”
In Hart v. Waitt, 3 Allen, 532, the precise question here presented is decided in harmony with our own holding, after quite a full consideration and discussion.' In that State, also, is made the very same distinction upon which we have relied, that which permits the amendment to be made in the justice’s court, but does not authorize it to be made on appeal, after a trial upon a complaint which was, by reason of the amount involved, beyond the jurisdiction of the justice. Ladd v. Kimball, 12 Gray, 139; McQuade v. O’Neil, 15 Gray, 52.
It is true that in several of the cases relied on by counsel, e. g., Kiphart v. Brennemen, supra; Goodwine v. Barnett, 2 Ind. App. 16; Caffrey v. Dudgeon, 38 Ind. 512, there are some very strong expressions as to the entire *552nullity of the proceedings before the justice. The reasoning in these cases, however, must be limited to the propositions under actual consideration. The first two cases named are, in our judgment, readily and clearly distinguishable because of the amendments being proposed, not in the original trial court, but in the circuit court on appeal. In the latter case there was no attempt at amendment, but the court holds void and unenforceable a bond executed by the plaintiff in a replevin suit commenced before a justice where the value of the property was beyond the amount of his jurisdiction. Whether the precise question in issue was there rightly decided, we are not called upon to determine, although it is opposed to the reasoning and to some of the authorities cited in Sammons v. Newman, 27 Ind. 508; Harbaugh v. Albertson, 102 Ind. 69, and Robertson v. Smith, 129 Ind. 422, and, also, Fahnestock v. Gilham, 77 Ill. 637, which cases are, however, in their facts plainly distinguishable from Caffrey v. Dudgeon.
Filed April 20, 1894.Be this as it may, we are not disposed to extend the principle announced in that case to this, but are satisfied to follow as to the case at bar the earlier decisions of our Supreme Court, sustained, as they are, by those of Maine and Massachusetts.
We may add that the proposition that the claim for damages took the case out of the jurisdiction of the justice, has been practically conceded by counsel, and was not decided by us.
Upon this question there is possibly room for two opinions. Middleton v. Harris, 6 Blackf. 397; Deam v. Dawson, 62 Ind. 22; State, ex rel., v. Forry, 64 Ind. 260, which was, to a considerable extent, modified in Grubaugh v. Jones, Admr., 78 Ind. 350, Fawkner v. Baden, 89 Ind. 587.
The petition for rehearing is, accordingly, overruled.