Alexander v. Gill

• Citation: 30 N.E. 525,130 Ind. 485
• Decision Date: 27 February 1892
• Docket Number: 15,329
• Parties: Alexander et al. v. Gill
• Court: Indiana Supreme Court

30 N.E. 525

130 Ind. 485

Alexander et al. v. Gill

No. 15,329

Supreme Court of Indiana

February 27, 1892

From the Marshall Circuit Court.

Judgment reversed, with instructions to the circuit court to set aside the judgment and sustain the demurrer to the reply.

A. C Capron, M. A. O. Packard and C. F. Drummond, for appellants.

J. D McLaren and E. C. Martindale, for appellee.

OPINION

Olds, J.

Newton Jackson and Jacob Ewald in August, 1887, filed their complaint before William C. Alexander, a justice of the peace of German township, in Marshall county, against Abraham Gill, for the possession of certain real estate described in the complaint, alleging that the plaintiffs in said cause were the owners and the defendant Gill was the tenant of the plaintiffs, and was unlawfully holding over and keeping such plaintiffs out of possession.

No question is urged as to the sufficiency of the complaint, and it was in the usual form of a complaint by a landlord against his tenant who was unlawfully holding over after notice to quit.

In that action the appellee herein appeared, and filed a verified answer, alleging that he was in possession of the real estate lawfully and of right, as owner thereof; that he purchased the real estate of Jackson, one of the plaintiffs in the action, and was put in possession under his contract of purchase before Jackson sold and conveyed the real estate to his co-plaintiff Ewald, and Ewald had full knowledge of his contract of purchase, and that he held possession at the time said Ewald purchased of Jackson.

To this answer the plaintiffs demurred, and the justice sustained the demurrer, and proceeded to the trial of the case, rendering judgment in favor of the plaintiffs for the possession of the land, and for damages for the detention. No appeal was taken from said judgment. Afterward the justice issued an execution and writ of restitution on said judgment, and delivered the same to David C. Smith, a duly-qualified and acting constable of said township. The said constable proceeded to execute the writ. The said appellee, Gill, and his wife and family refused to leave the premises or allow the constable to remove his goods, consisting mainly of household goods, and the plaintiff and his family made an assault on the constable. The constable, being unable to execute the writ, then called to his assistance Jacob Ewald, Carlson Ewald, Edward Ewald, Levy Cox and Frederick Rowe, all of whom were citizens of said Marshall county, and commanded them to help him remove the said appellee and his family and goods from said premises, which they proceeded to do, using no more force than necessary to remove them.

The appellee then brought this action against William C. Alexander, the justice of the peace, David C. Smith, constable, Jacob Ewald, Carlson E. Ewald, Edward C. Ewald, Frederick Rowe and Levy Cox for damages for removing him by force from the premises aforesaid of which he was in possession.

The defendants below answered, first, by general denial, and, secondly, pleaded the judgment and writ of restitution issued upon the same, the resistance offered the constable in the execution of the writ, and his inability to execute the same without assistance, and that he called his co-defendants, except Alexander, the justice, to aid him, and they used no more force than was necessary to remove the plaintiff and his family and goods from the premises.

To this answer the appellee replied the filing of the answer by this appellee in the action before the justice of the peace, alleging his ownership of the land, which was verified.

The defendants demurred to this reply for want of facts, which demurrer was overruled, and this ruling is assigned as error, and this presents the only question in the case.

There is a bill of exceptions set out in the record, but it was not presented to the judge in time, and is not properly in the record.

There was a trial of the cause, resulting in a judgment in favor of the appellee against all of the appellants, being all of the defendants below except Frederick Rowe.

The appellants appeal, but serve no notice of appeal on Rowe; and it is contended by the appellee that the cause should be dismissed on account of the fact that Rowe does not join in the appeal, and no notice of the appeal has been served on him by the appellants, as required by section 635, R. S. 1881, or that error is not properly assigned by the appellants alone.

There is nothing in this objection. It has been held by this court that, when all of the parties against whom a judgment has been rendered appeal, it is not necessary to serve notice upon other parties to the record, against whom no judgment has been rendered, and who have no interest in the appeal. Koons v. Mellett, 121 Ind. 585, 23 N.E. 95. There was no judgment rendered against Rowe, and he has no interest in this appeal.

The defendants filed a joint demurrer, and it was overruled. If such ruling was erroneous, it is available for all of the appellants, and is properly assignable as error by them on appeal. They can not be deprived of taking advantage of an erroneous ruling against them for the reason that no judgment was rendered against one of the defendants who joined in the demurrer.

We now come to the real question in the case regarding the sufficiency of the reply. It is contended on the part of the appellee that the filing of the verified answer by the appellee in the action before the justice of the peace alleging himself to be the owner of the land, terminated the jurisdiction of the justice, and all that the justice had authority to do thereafter was to certify the cause to the circuit court; that the judgment rendered by said justice was absolutely void, and the writ issued thereon gave no authority to the constable to put the appellee, Gill, out of the possession and restore the same to Ewald;...