Brandis v. Grissom
| Decision Date | 17 May 1901 |
| Docket Number | 3,722 |
| Citation | 60 N.E. 455,26 Ind.App. 661 |
| Parties | BRANDIS ET AL. v. GRISSOM |
| Court | Indiana Appellate Court |
From the Vanderburgh Superior Court.
Affirmed in part, reversed in part.
C. L Wedding, for appellants.
S. R Hornbrook and W. M. Wheeler, for appellee.
In this action a complaint in one paragraph was filed prior to December 13, 1898. That paragraph was dismissed February 4 1899. On December 13th a second paragraph was filed, upon which a trial was had and judgment rendered against appellants, who were defendants below. This paragraph sought to enjoin the appellants from leaving open three gates erected across a right of way upon real estate described in the complaint. The trial resulted in a judgment against appellant William E. Brandis for $ 5, and against both appellants perpetually enjoining them or their successors or grantees from leaving open the gates in question during certain months of the year.
Each appellant assigns as error (1) that the complaint does not state facts sufficient to constitute a cause of action; (2) that the court erred in overruling the motion for a new trial; (3) that the court erred in refusing the appellant a trial by jury.
The third specification of errors presents no question, because the refusal to grant a trial by jury is a cause for a new trial and can not be properly made the subject of an independent assignment. Childers v. First Nat. Bank, 147 Ind. 430, 46 N.E. 825, and authorities there cited. Neither is the question presented by the motion for a new trial, it not being set out as one of the reasons therefor. But, if properly presented, the assignment would be unavailing, for the cause was properly triable by the court. Whitlock v. Consumers Gas Co., 127 Ind. 62, 26 N.E. 570.
In discussing the sufficiency of the complaint, it is argued in behalf of the appellants that it is without all the essential requisites of a complaint under the statute. It is specified that it fails to comply with the first requirement of the statute (§ 338 R. S. 1881 and Horner 1897), that a complaint shall specify the name of the court and county in which the action is brought; that the complaint in question does not give the name of the court or county in its title of the case, and does not specify who is plaintiff or defendant. The first page of the transcript is as follows: "State of Indiana, Vanderburgh county. In the Superior Court of Vanderburgh county. John R. Grissom v. William E. Brandis, Maria Brandis. Be it remembered that on December 13, 1898, the plaintiff filed in said court his second paragraph of complaint in the above entitled cause which second paragraph of complaint is in the words and figures following to wit: John R. Grissom v. William E. Brandis, Maria Brandis. The plaintiff for his second paragraph of complaint against the defendant says:" etc. Appellant answered without demurring to the complaint. The objections made go to the form rather than the substance. The defects enumerated could not have affected the substantial rights of the defendants and should not avail appellants upon appeal. § 338 R. S. 1881 and Horner 1897.
Other objections made to the complaint by counsel for appellant Maria Brandis are more serious. The only reference made in the complaint to the last named appellant is that she owns the real estate over which the right of way passes and claims some interest in the controversy. The complaint asks for relief against the appellants, but proceeds against William E. Brandis alo...
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