Everett v. Irwin

• Decision Date: 14 March 1911
• Docket Number: No. 7,230.,7,230.
• Citation: 47 Ind.App. 263,94 N.E. 352
• Parties: EVERETT v. IRWIN et al.
• Court: Indiana Appellate Court

47 Ind.App. 263

94 N.E. 352

EVERETT

v.IRWIN et al.

No. 7,230.

Appellate Court of Indiana, Division No. 1.

March 14, 1911.

Appeal from Circuit Court, Tippecanoe County; R. P. De Hart, Judge.

Action by Adeline Irwin and another against Thomas Everett. From a judgment for plaintiffs, defendant appeals. Affirmed.

Harry G. Leslie, for appellant. Will R. Wood, for appellees.

MYERS, C. J.

This was an action by appellees, against appellant, to recover the possession of certain real estate, commenced before a justice of the peace, and taken by appeal to the court below, where the cause was tried before a jury, resulting in a verdict in favor of appellees. Appellant's motion in arrest of judgment and his motion for a new trial as of right were overruled. Judgment was rendered in favor of appellees, and appellant appealed to the Supreme Court, assigning error upon each of said rulings. The Supreme Court for lack of jurisdiction transferred the cause to this court.

Appellant by his motion in arrest of judgment challenges the complaint on the ground that it fails to state a cause of action within the jurisdiction of a justice of the peace. The complaint showed that appellees were the owners as tenants in common of certain real estate in Tippecanoe county, Ind.; that a certain room in the building on said real estate was occupied by appellant as an office; that appellees were entitled to the immediate possession thereof; that appellant held possession of said room without right, and for 15 days last past unlawfully kept appellees out of possession thereof, to their damage, etc.

Where the relation of landlord and tenant exists, justices of the peace have jurisdiction of actions for the possession of lands. Section 8071, Burns 1908. Appellees insist that the complaint, reasonably construed, shows that the relation of landlord and tenant existed. It is a well-recognized rule of pleading that, where an action is commenced before a justice of the peace, a complaint sufficient, in substance, to apprise the adverse party of the nature of the demand, and to bar another action for the same thing, is sufficient even as against a demurrer. Clifford v. Meyer, 6 Ind. App. 633, 34 N. E. 23;Metropolitan Life Insurance Co. v. Bowser, 20 Ind. App. 557, 50 N. E. 86;Lippman v. City of South Bend, 84 Ind. 276;Brown v. Thompson, 90 N. E. 631.

While we do not commend the complaint as a precedent in such cases, yet, when all of the facts therein are considered along with the presumption of a correct determination of matters involved and the liberal rule relating to complaints before justices of the peace, we are not prepared to say that it was not sufficient to apprise the appellant of all that was necessary under the rule hereinbefore stated to withstand an attack made after verdict. The only question is: Does the complaint show that the relation of landlord and tenant exists? In this respect the pleading shows that appellees were the owners of the building, the character of the property in question, and the purposes for which it was occupied; that such occupancy was without right; and that appellees were unlawfully kept out of possession, etc. The pleader used the words “unlawfully kept” in the sense of “unlawfully detained,” and the words “unlawfully detained” have been...