Evans v. Schafer

• Decision Date: 08 May 1889
• Docket Number: 13,714
• Parties: Evans v. Schafer et al
• Court: Indiana Supreme Court

21 N.E. 448

119 Ind. 49

Evans v. Schafer et al

No. 13,714

Supreme Court of Indiana

May 8, 1889

From the Clark Circuit Court.

Judgment affirmed, with costs.

D. C Anthony and M. Clegg, for appellant.

J. H Stotsenburg and E. B. Stotsenburg, for appellees.

OPINION

Olds, J.

This action was commenced by Henry Schafer, in his lifetime, against Sargent W. Evans, the appellant, alleging that the said Henry Schafer, plaintiff, was the owner in fee simple and entitled to the possession of certain real estate described in the complaint, and that the defendant held the possession of the same without right, and for six years last past had unlawfully kept the plaintiff out of possession thereof, to plaintiff's damage $ 600, which sum is still due and unpaid. Prayer for judgment for $ 600, and all other proper relief.

During the pendency of the suit, the plaintiff, Henry Schafer, died, and Elizabeth Schafer, David Schafer, George Schafer, and David Schafer, as executor of the last will and testament of said Henry Schafer, deceased, were substituted as parties plaintiffs.

The appellant, the defendant below, demurred to the complaint for cause that "there is a defect in parties plaintiffs; that the executor of the will, and not the heirs of Henry Schafer, is the proper plaintiff."

It will be observed that the executor of the will of Henry Schafer is one of the parties substituted as plaintiff.

It is urged that a complaint by several co-plaintiffs, to be sufficient, must show a good cause of action as to all the plaintiffs. That is true, when tested by a proper demurrer. A complaint in favor of several plaintiffs, to stand the test of a demurrer for want of facts sufficient to constitute a cause of action, must state a cause of action in favor of all the plaintiffs. Brumfield v. Drook, 101 Ind. 190; Brown v. Critchell, 110 Ind. 31, 7 N.E. 888. But the demurrer in this case is for a defect of parties, in that the executor is not a party, when he is in fact a party. The demurrer was properly overruled.

Objection is made that the judgment is rendered for the possession of the real estate, and that there is no specific prayer for the possession.

The complaint contained proper averments, which, if proven, entitled the plaintiffs to possession, and it also contained a general prayer for relief.

There was an appearance, trial and finding in favor of the plaintiffs "that they are the owners, and...