wise. Any sum charged for royalty, or as a bonus, would be unconstitutional.

Except in so far as these views may not harmonize with the foregoing opinion, I concur therein.

PETITION FOR MANDAMUS CANNOT BE DEMURRED TO; but if the writ is defective in form or substance, motion may be made to quash it, or the defect reached by return: Dane v. Derby, 89 Am. Dec. 722; State v. Board of Equalization, 74 Id. 381.

WHAT ALTERNATIVE WRIT OF MANDAMUS MUST CONTAIN: Note to Dane v. Derby, 89 Am. Dec. 741, 742.

APPROPRIATION OF WATER, and rights acquired by prior appropriation: Ophir S. M. Co. v. Carpenter, 97 Am. Dec. 550, note 559; Davis v. Gale, 91 Id. 554; Lobdell v. Simpson, 90 Id. 537, note 541; note to Tolle v. Correth, 98 Id. 543.

RIGHT TO USE OF WATER: Stein v. Burden, 65 Am. Dec. 394; note to Tolle ▼. Correth, 98 Id. 543.

CASES

IN THE

SUPREME COURT OF JUDICATURE

OF

INDIANA.

CHICACO AND ATLANTIO RAILWAY Co. v. SUMMERS.

[118 INDIANA, 10.]

PROCEEDING TO ENFORCE PAYMENT OF JUDGMENT FOR Animals KilleD OR INJURED BY Railroad Company, under section 4030, Indiana Revised Statutes of 1881, is an original proceeding to be instituted only in the circuit court of the proper county, the decision in which is a final judgment, from which an appeal will lie to the supreme court, without regard to the amount of the original judgment sought to be enforced. COMPLAINT IS SUFFICIENT ON DEMURRER, although, it seems, a motion to make it more certain and specific would be granted, where, in a proceeding under section 4030, Indiana Revised Statutes of 1881, to enforce pay. ment of a judgment for animals killed and injured by a railroad company, it alleges that the "judgment was upon a complaint for stock killed and injured by said railway company," without showing that the stock were killed by the "cars, locomotives, or other carriages" of the company as mentioned in the statute.

PLEADING REQUIRED TO BE FILED BY PLAINTIFF IN PROCEEDING TO ENFORCE PAYMENT OF JUDGMENT for animals killed or injured by a rail. road company, under section 4030, Indiana Revised Statutes of 1881, although called in the statute a "motion," may be demurred to or an swered as in other civil actions.

MODES OF PROCEDURE AND RULES OF PRACTICE, PRESCRIBED IN CIVIL ACTIONS, ARE ALL APPLICABLE in Indiana to special statutory proceedings for the enforcement of private rights, except where the statute authorizing and regulating such special proceeding has expressly or by fair implication prescribed a different course of procedure or rule of practice therein.

VOID JUDGMENT MAY BE ATTACKED in a collateral suit or proceeding. MOTION TO STRIKE OUT ANSWER WILL NOT PERFORM OFFICE OF DEMUR

RER THERETO for want of sufficient facts, and should not be sustained if the facts pleaded therein are relevant or pertinent to the issue, although insufficient on demurrer.

JUDGMENT RENDERED BY JUSTICE IN FAVOR OF PARTY FOR WHOM HE IS ACTING AS ATTORNEY in the case, is absolutely void, and may be attacked and impeached whenever and however it is sought to be enforced. MOTION under section 4030, Indiana Revised Statutes of 1881, to enforce a judgment recovered against the railway company, before a justice of the peace, for stock killed and injured by the company. The facts are stated in the opinion.

J. S. Slick and W. O. Johnson, for the appellant.

A. I. Gould and G. A. Murphy, for the appellee.

By Court, Howк, J. Appellee, Summers, has moved the court in writing to dismiss the appeal in this cause for the following reasons, namely: 1. Because this court has no jurisdiction whatever of such appeal; 2. Because it is not an appeal from a final judgment, but from an order on a motion under section 4030, Revised Statutes 1881; 3. Because such appeal was taken from a judgment of the court below in an action which originated before a justice of the peace, wherein the amount in controversy did not exceed fifty dollars, exclusive of costs, as shown by the record.

It is manifest, we think, that the consideration and decision of appellee's motion to dismiss this appeal will require at our hands an examination of the entire record of this cause. In view of this fact, and as counsel for both parties, as well for appellee as for appellant, have fully argued the cause on its merits, we have concluded to consider and decide now all the questions presented by the appeal herein and by appellee's motion to dismiss such appeal. In argument, appellant's learned counsel rely upon the following errors, assigned upon the record, for the reversal of the judgment or order below, namely: 1. The overruling of appellant's demurrer to appellee's motion or complaint; 2. The sustaining of appellee's motion to strike out appellant's answer to his motion or complaint herein.

On the twenty-ninth day of September, 1886, appellee, Summers, filed in the court below his complaint, wherein he averred that on the fifteenth day of July, 1885, he recovered before W. H. Weir, Esq., a justice of the peace of Starke County, a judgment against appellant herein, a corporation duly organized under the laws of this state, and operating a railroad through such county, for the sum of fifty dollars, and for fifteen dollars and forty cents costs, which judgment was upon a complaint for stock killed and injured by said railway company; and that such judgment was wholly unpaid, unappealed

from, and in full force. Appellee further alleged that on the twenty-eighth day of September, 1886, he caused a certified transcript of his said judgment to be filed in the clerk's office and recorded in the order-book of such court; and that William Scott, appellant's freight and ticket agent at North Judson, had, or would have in a short time, moneys in his hands belonging to appellant sufficient to pay off such judgment and costs. Wherefore appellee asked that a writ be issued requiring said Scott, agent as aforesaid, to appear before such court and answer, upon oath, as to such money, and for all other proper relief.

It is conceded by counsel on both sides that this proceeding or suit was instituted by appellee in the court below under the provisions of section 4030, supra, in force since March 4, 1863. In that section it is provided as follows: "Any person obtaining a judgment before a justice of the peace for any animal or animals killed or injured by the cars, locomotives, or other carriages of any railroad in this state, upon the filing of a certified transcript of such judgment in the office of the clerk of the circuit court of the county in which such animal or animals were killed or injured, and upon the clerk of such court entering the same on the order-book thereof, upon notice and motion made in such court, as specified in the preceding section, shall be entitled to the order and proceedings as therein specified."

Two things are manifest, we think, from these statutory provisions, namely: 1. That the proceeding of the judgment plaintiff to enforce the payment of his judgment by notice and motion, as provided in the statute, is not an appeal, nor in the nature of an appeal, from the judgment of the justice, but is a new and original suit or proceeding to be instituted, under the statute, in the circuit court of the proper county, and in no other court or county; and 2. The decision of the proper court, upon the hearing of the suit or proceeding, is not interlocutory, but is a final order and judgment, from which an appeal will lie to this court without regard to the amount of the justice's judgment of which the court may require the payment. From this construction of the statute, which seems to us to be correct, it follows necessarily that appellee's motion to dismiss the appeal herein, for any or all of the causes specified therein, is not well taken and cannot be sustained. The motion to dismiss, therefore, is overruled, with costs: Louisville etc. R'y Co. v. Thompson, 62 Ind. 87.

Appellant's counsel claim that the complaint or motion herein was bad on demurrer, because it failed to show that appellee obtained his judgment before the justice for any animal or animals killed or injured by appellant's "cars, locomotives, or other carriages." The averment of the motion or complaint on this point is, that the "judgment was upon a complaint for stock killed and injured by said railway company."

We are of opinion that the motion or complaint herein was sufficient to withstand appellant's demurrer thereto. The utmost that can be said, we think, against the sufficiency of the motion or complaint is, that the averment last quoted does not show with sufficient certainty that appellee's judgment before the justice was upon a complaint for stock killed and injured by the cars, locomotives, or other carriages of the appellant. This objection to the motion or complaint, however, if it exist, can only be reached or taken advantage of by a motion to make the pleading more certain and specific, and a demurrer thereto, on that ground, may be overruled without error: R. S. 1881, sec. 376; Pittsburgh etc. R'y Co. v. Hixon, 110 Ind. 225.

In appellant's answer to appellee's motion or complaint, the material facts alleged were, that the judgment, the payment of which is sought to be enforced in this proceeding, was rendered by and before a justice of the peace who was appellee's attorney in commencing the suit wherein such judgment was rendered; that he prepared appellee's complaint in that suit, and signed his name thereto as plaintiff's attorney, and filed the same before another justice of Starke County, and appeared before the latter justice as appellee's attorney to prosecute such suit; that the venue of such suit was changed from the latter justice, and he sent the same for trial to the justice of the peace who was appellee's attorney therein, and who took jurisdiction thereof, and rendered the judgment therein mentioned in the motion or complaint in this proceeding.

It was further averred in appellant's answer herein that while such suit was pending before appellee's attorney therein, as such justice of the peace, and on the day set for the trial of such cause, appellant herein appeared specially before such. justice, and filed its verified plea in abatement to the jurisdiction of such justice to hear and determine such suit, for the reason following, namely: "That said justice drew up and signed the complaint herein as the attorney for the plaintiff, and was regularly employed by the plaintiff to act as his at