Brummett v. Pilotte
Citation | 181 Ind.App. 135,390 N.E.2d 705 |
Decision Date | 25 June 1979 |
Docket Number | No. 2-978A323,2-978A323 |
Parties | Pearl BRUMMETT, Sidney Farney, Grace Stoller, and Josephine Farney, Plaintiffs-Appellants, v. Norbert PILOTTE, Defendant-Appellee. |
Court | Indiana Appellate Court |
Marcel Katz, Lafayette, for plaintiffs-appellants.
Joseph T. Bumbleburg, Ball, Eggleston, Bumbleburg & McBride, Lafayette, for defendant-appellee.
Plaintiffs Brummett, et al., (Brummett) sued to eject Pilotte from Brummett's farm. Judgment was entered in favor of Brummett on March 30, 1973. Pilotte appealed and gave a supersedeas bond which was approved by the trial court April 9, 1973. Thereafter, Pilotte remained on the farm until February 28, 1974. On August 18, 1975, this Court affirmed the judgment of ejectment. Pilotte v. Brummett, (1975) 165 Ind.App. 403, 332 N.E.2d 834.
The 1973 crop year fell within the pendency of the prior appeal. During that year Pilotte farmed the land as he had done prior to the judgment of ejectment. And, in the same fashion as called for by their prior agreement, Brummett received one-half the sale price of the 1973 crop. The trial court found that this amounted to $25,250. The court determined that Brummett also was entitled to the additional amount of $5,074 to compensate Brummett for attorney fees, weed control measures, and deprivation of use of the farm residence, less $1,595 paid by Pilotte for certain farm expenses. The net amount, $3,479, plus interest, was ordered to be paid by Pilotte to Brummett. This allocation of damages is correct and we affirm.
Brummett, however, disputes this damage award. She contends that for the pendency of the prior appeal she is entitled not only to her customary landlord's half share of the 1973 crop, $25,250, but also to the share which was retained by the tenant Pilotte. She bases this claim on the fact that she prevailed in the prior appeal.
The issue, therefore, is the extent of Pilotte's liability for having retained possession of the farm during a portion of the pendency of the appeal. Neither party has located Indiana authority which squarely answers this issue. Trial Rule 62 of the Indiana Rules of Procedure gives guidelines for determining the size of a supersedeas bond. However, the rule does not specify the elements of damage, if any, which may be recovered by Brummett. The same is true of the rule's statutory predecessor, Burns' Ind.Stat.Ann., § 2-3204 (1968 Repl.).
Indiana case law is inconclusive. Brummett, for example, points to cases such as McCaslin v. State ex rel. Auditor of State, (1885) 99 Ind. 428. In McCaslin the Court said that "(w)here, as in this case, the plaintiff in ejectment recovers the land, he is entitled to the crops thereon, growing or cut and shocked thereon, which were planted after the action was commenced. 99 Ind. 442. While this language superficially may apply to the case at bar, McCaslin is nonetheless distinguishable. In contrast to the case at hand, the Court in McCaslin was not confronted with a tenant farmer who had remained on the land during the pendency of an appeal and had posted an appropriate bond. Sherry v. State Bank of Indiana, (1855) 6 Ind. 397, suggests that a tenant in possession during the pendency of an appeal is liable for mesne profits. Keeping in mind that "mesne profits" is a tool of equity, Semple v. Bank of British Columbia, (C.C.Or.1879) 21 F.Cas. No. 12,660, pp. 1068, 1072, and thus is to be applied in an equitable manner, Sherry gives no specific guidelines for the case at hand. Semple v. Bank of British Columbia, supra ( ).
Turning to other authorities, we find that the issue before us was discussed in a related context in Annot., 95 A.L.R. 1127 (1935), where the following statement was made:
95 A.L.R. 1127 (emphasis added). Similarly, it was stated in Annot., 113 A.L.R. 1059 (1938), as follows:
113 A.L.R. 1061 (emphasis added).
These principles were illustrated in Woodcock v. Carlson, (1889) 41 Minn. 542, 43 N.W. 479. In Woodcock the court was called upon to discuss the liability of a tenant farmer who remained on the farm during the pendency of an appeal. This is the same issue before us. The tenant farmer had suffered a negative judgment in the landlord's action of detainer to recover possession. Thereafter he gave an appropriate bond, remained in possession, and received an adverse decision from the appellate court. With respect to the measure of the landlord's recovery, the court said:
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