Brennan v. Reydell

• Decision Date: 04 February 1963
• Docket Number: No. 19679,No. 1,19679,1
• Parties: John J. BRENNAN, Appellant, v. Louise REYDELL, Appellee
• Court: Indiana Appellate Court

Page 492

187 N.E.2d 492

134 Ind.App. 298

John J. BRENNAN, Appellant, v. Louise REYDELL, Appellee.

No. 19679.

Appellate Court of Indiana, Division No. 1.

Feb. 4, 1963.

Busby, Davisson, Cooper & Farr, Anderson, Lafuze, Ging & Graber, Indianapolis, for appellant.

Schrenker & Anderson, Anderson, for appellee.

COOPER, Chief Justice.

This appeal is from a proceeding in the Superior Court of Madison County, Indiana, wherein the appellee, Louise Reydell, filed a cause of action against John J. Brennan, appellant herein, alleging, in substance, that the said appellee had orally leased certain real estate situated in Madison County, Indiana, to appellant for the term of one month, and from month to month thereafter until terminated; that appellee had demanded possession of said real estate from appellant; that appellant had failed and refused to deliver possession of said real estate to appellee, as demanded, and prayed for a judgment in favor of appellee for possession of said real estate and for damages.

It appears from all the pleadings in the record that the real issue before the trial court was the appellee's right to possession of the real estate described in her complaint.

The record reveals that after submission to the court without the intervention of a jury, the trial court found for and entered judgment for the appellee upon her complaint. Within the proper time, the appellant filed his motion for a new trial, which in due course, was overruled.

The assigned error before us is, 'The Court erred in overruling Appellant's Motion for a new trial'.

Under the rules of the Supreme Court of Indiana and the law interpreting said rules, it appears from the appellant's brief that the appellant has properly submitted the following points for our consideration:

1. Did the trial court err in refusing the appellant's motion to consolidate this cause with others pending in the same court?

2. Was there sufficient evidence of probative value introduced to warrant the trial court's decision; and lastly,

3. Was the decision of the trial court contrary to law?

In reviewing Rule 1-4A, subsection (a) of the Supreme Court relating to the consolidation of causes, we find the following provision:

'(a) Consolidation. When actions (other than criminal) involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may wake such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.' (Our emphasis.)

Therefore, it appears that generally a consolidation of causes of action cannot be successfully demanded as a matter of right, but are to be granted or denied in the discretion of the trial court, and such ruling is not cause for reversal unless such discretion is manifestly abused. Trook v. Crouch (1923) (T.D.1924), 82 Ind.App. 309, 137 N.E. 773. See, also, Trusler v. Galambos et al. (1958), 238 Ind. 195, 200, 149 N.E.2d 550, and Roark, Holcomb v. State (1955), 234 Ind. 615, 130 N.E.2d 326; § 1411, Comment 5, Flanagan, Wiltrout & Hamilton's, Indiana Trial and Appellate Practice.

We find in the case of New York Cent. R. Co. v. Pinnell, Admx. (1942) (T.D.), 112 Ind.App. 116, 40 N.E.2d 988, the following definition of the word, 'discretion':

'In the case of Langnes v. Green, 1931, 282 U.S. 531-544, 51 S.Ct. 243, 247, 75 L.Ed. 520, 526, the Supreme Court of the United States uses the following language in defining 'discretion':

'The term 'discretion' denotes the absence of a hard and fast rule. The Styria v. Morgan, 186 U.S. 1, 9, 22 S.Ct. 731, 46 L.Ed. 1027 [1033]. When invoked as a guide to judicial action, it means a sound discretion, that is to say, a discretion exercised not arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result."

We, under the foregoing authorities, cannot say, as a matter of law, that the trial court abused its discretion in this case.

In reviewing the evidence contained in the record, it appears there is some conflict therein. It is the well-established rule that the weight of the evidence, the credibility of the witnesses are for the trial court and not the appellate tribunal to determine, and where such evidence is conflicting, this court will only consider the evidence most favorable to the party in whose favor the judgment was entered. Sec. 2786, Flanagan, Wiltrout & Hamilton's, Indiana Trial and Appellate Practice, and authorities cited therein.

We are of the opinion that the trial court's decision was supported with sufficient evidence of probative value.

The appellant lastly maintains that the decision is contrary to law because the trial court erred in not permitting the appellant to show that the appellee's claim to the ownership of the real estate in question was not without contradiction and was imperfect and that such showing were necessary to a complete defense of the action brought by the appellee.

It appears that the complaint herein affirmatively avers the relationship of landlord and tenant and that it was a possessory action only as the relief sought was a judgment for possession and damages for the failure to pay rent.

In the case of Adams v. Holcomb (1948), 226 Ind. 67, cited by the appellant, at p. 73, 77 N.E.2d 891, at p. 894, we find the following pertinent statement:

'* * * where the action is brought by a landlord against his tenant merely to recover possession of the real estate the tenant is estopped while continuing in possession, to dispute the title of his landlord, and the landlord is entitled to recover without further proof of his title than the fact that the defendant is his tenant in possession as such. Warvelle Ejectment § 236. Of course this rule as to estoppel does not apply when the purpose of the suit is to establish title, or where the decree sought would not only give possession of the land but by estoppel settle the title to it. Tuell v. Homann, 1915, 60 Ind.App. 285, 108 N.E. 596. See 89 A.L.R. 1295 Note.'

And, in the case of St. Germain v. Sears, Roebuck & Co. (1942), 112 Ind.App. 412,...