Bivens v. Henderson
| Decision Date | 24 November 1908 |
| Docket Number | No. 6,578.,6,578. |
| Parties | BIVENS et al. v. HENDERSON. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Shelby County; Wm. M. Sparks, Judge.
Ejectment by William E. Henderson against Absent Bivens and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded for a new trial.
Wm. V. Rooker, for appellants. Clarke & Clarke and Wray & Campbell, for appellee.
Appellee brought an action in ejectment in the court below, against appellants. Appellants' demurrer to the complaint was overruled. An answer of general denial, together with several paragraphs setting up special matters of defense, was filed. Appellee's demurrer to the special paragraphs of answer was sustained, and exceptions reserved; the cause submitted to a jury for trial, and a general verdict returned in favor of appellee, together with answers to interrogatories returned by the jury. Appellants' motion for a new trial was overruled, and judgment rendered in appellee's favor on the verdict. The errors assigned by each appellant severally call in question the action of the court in overruling appellants' demurrer to the complaint, in sustaining the demurrers to the second, third, and fourth paragraphs of appellee's answer, and in overruling appellants' motion for a new trial. The cause was begun in the Marion superior court, where a trial was had, a new trial granted, and the venue of the cause then changed to the Shelby circuit court, and there the trial had, which resulted in the judgment from which this appeal was taken.
It is insisted that the complaint is bad, for the reason that its averments show that the plaintiff and defendants are tenants in common of the premises described in the complaint, and that, in actions in ejectment by one tenant in common against a co-tenant, it is essential that the complaint aver, either that the defendant denied the plaintiff's right, or did some act amounting to such denial. The averments of the complaint are that the plaintiff is the owner in fee simple, as a tenant in common, of the undivided onefifteenth of the premises described, and that he is entitled to the possession of all the premises, and that the defendant holds possession without right. There is no averment that the plaintiff and defendants are co-tenants, nor do the facts averred show any such relations between them. On the contrary, it is averred that the defendant holds possession “without right.” The complaint does not proceed upon the theory that it is an action by one tenant in common against a co-tenant, but on the theory that the defendants are trespassers, and in possession without right against all of the owners, and is a suit by one of several co-tenants against such trespasser. The complaint is in substantial compliance with section 1100, Burns' Ann. St. 1908, and no error was committed in overruling the demurrer thereto. The general denial was filed to the complaint. Under this pleading all defenses that would be admissible under the paragraphs of answer, to which the court sustained appellee's demurrer, could be made, and therefore no available error intervened in the rulings on such demurrer.
It is earnestly insisted by appellee that no question is presented to this court upon appellants' assignment of error; that the court below erred in overruling appellants' motion for a new trial, for the reason that the record discloses that the cause originated in the Marion superior court; was there tried, and a verdict returned in favor of appellee, and appellants' motion for a new trial for cause overruled by that court, and judgment rendered on the verdict. Subsequently appellants' motion for a new trial as a matter of right was sustained, the judgment set aside, and a new trial granted, and the venue of the cause transferred to the Shelby circuit court, where the cause was tried, a verdict returned in favor of appellee, appellants' motion for a new trial for cause filed and overruled by that court, and judgment rendered on the verdict, from which judgment this appeal was taken, and that the assignment of error in question fails to specify the rulings of which court, and on which particular motion for a new trial the appellants complain. This assignment properly calls in question the ruling of the court upon the motion for a new trial of that trial which resulted in the judgment from which the appeal is taken. No other trial had anything whatever to do with the judgment of the court and the ruling complained of. We think the assignment properly presents to this court the ruling of the court below upon appellants' motion for a new trial.
Criticism is made, too, of the form of the motion for a new trial; but we think the averments are sufficiently formal to present the questions raised, and the assignment of error is a sufficient assignment by each defendant, and properly presents the question as to whether or not there was error in the ruling on the motion for a new trial against the appellant McGruder.
It is earnestly insisted by appellee that the bill of exceptions contained in the record is not properly a part of the record, for the reason that the same was not signed by the judge or presented to him within the time allowed by the court for the presentation of such bill of exceptions. The cause was tried at the December term, 1905, of the Shelby circuit court, and a verdict rendered at that term of court. Motion for a new trial, being afterwards made, was at the March term of the court overruled, and during that term judgment was rendered in favor of appellee upon the verdict, and on the 21st day of April, being the 36th judicial day of the March term of the court, the appellants were granted 90 days in which to file their bill of exceptions. The bill of exceptions in the transcript was not filed within the 90 days, but on the 6th day of July, 1906, after the close of the March term at which the time had been granted, they filed their bill of exceptions; and, during the session of the May term, 1906, of said court there appears this record, after entitling the cause: “Come now the parties, and the defendant Thomas McGruder now requests of the court an extension of time of 30 days in which to file his bill of exceptions, and the court, being fully advised in the premises, grants said request, and considers and adjudges that said defendant be, and he is, hereby granted 30 days additional, beginning July 20, 1906, in which to file his bill of exceptions.” The bill of exceptions in question was filed within the additional 30 days so given by the court. But it is contended that no notice was given the parties of the application for the extension of time within which to file the bill of exceptions, and that it was not made upon any sworn petition setting forth the facts required to appear in order to authorize the granting of such petition, and that the order was made in the absence, and without the knowledge, of the appellee. It is the theory of the appellee that, before the court, or judge in vacation is empowered to extend the time within which a bill of exceptions may be filed, a verified petition must be filed, showing that the failure of the party presenting the bill to present it within the time granted was due to the inability or failure of the court reporter to prepare and furnish a transcript of the evidence, as provided in Act April 15, 1905 (Acts 1905, p. 45, c. 40). In this view we cannot concur. The statute in question provides that “whenever time has been given in which to file any bill of exceptions, the court, if in session, or the judge thereof in vacation, may, on a proper showing, under oath, either in term time or vacation, grant a reasonable extension of time to file the bill of exceptions containing the evidence, providing the failure to tender such bill of...
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