Elliott v. Stone City Bank

Decision Date03 March 1892
Citation4 Ind.App. 155,30 N.E. 537
PartiesELLIOTT et al. v. STONE CITY BANK.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Lawrence county; R. W. MIERS, Judge.

Action by Stone City Bank against William Elliott and another. Judgment for plaintiff. Defendants appeal. Reversed.

Jos. Giles, for appellants. M. F. Dunn, for appellee.

BLACK, J.

The appellee sued the appellants, and recovered judgment for the possession of certain real estate in the city of Bedford, with damages for the detention thereof after the alleged termination, by notice to quit, of the tenancy of the appellants. The court, upon the appellee's motion, struck out certain paragraphs of answer, leaving in the record the general denial as the only answer.

The statute (Rev. St. 1881, § 5225) directs the character of the complaint in such an action. The proceedings subsequent to the complaint, though the action be commenced in the circuit court, may be as in civil cases before a justice, in which all matters of defense except the statute of limitations, set-off, and matter in abatement may be given in evidence without plea. Rev. St. 1881, §§ 1460, 5229; Poffenberger v. Blackstone, 57 Ind. 288. The answers struck out were not brought back into the record by bill of exceptions or order of court. Therefore, though they are copied in the transcript, they cannot be regarded as in the record. State v. Krug, 82 Ind. 58;McDonald v. Geisendorff, 128 Ind. 153, 27 N. E. Rep. 333.

A motion for a new trial, made by the appellants, was overruled. The evidence showed that the property in question was conveyed to the appellee while in the possession of the appellants as tenants of the appellee's grantor, on the 16th of February, 1891. The notice to quit was dated February 18, 1891; and by its terms it was a notice to the appellants to yield up to the appellee possession of the premises on or before April 1, 1891, and that the “lease and rental” under which the appellants claimed to hold would expire on March 31, 1891. There was no proof of the service of the notice. It seems to have been treated on the trial by all parties as a month's notice to quit, and no reference to the failure to prove service has been made by counsel in this court. Joseph A. Heitger was shown to have been the agent of the appellee's grantor, and to have rented the property for said grantor, and to have collected the rents. He was a witness for the appellee, and testified that the appellants had occupied the property for some two or three years; that he never had any specific contract with them, but that they paid rent at $15 a month, and paid at the end of each month, generally; that in December, 1889, he told Elliott, one of the appellants, that he (said agent) would raise the rent from $15 to $18 a month, beginning on the 1st of January, 1890; that he raised it to $18, payable monthly, and so told Elliott; that he always paid it monthly, except when the agent granted an extension; that in December, 1889, he said to Elliott, “You had better let me lease the building to you for three years;” that Elliott said, “Let it go as it has been going on;” that after January 1, 1890, the appellants continued to pay rent at $18 per month; that he did not say to Elliott that he...

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