Giller v. West
| Decision Date | 15 January 1904 |
| Docket Number | 19,955 |
| Citation | 69 N.E. 548,162 Ind. 17 |
| Parties | Giller v. West |
| Court | Indiana Supreme Court |
From Marshall Circuit Court; A. C. Capron, Judge.
Action by Harriet B. West against John B. W. Giller. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Reversed.
J. D McLaren, for appellant.
Charles Kellison and H. A. Logan, for appellee.
Action by the appellee against the appellant and two other persons to recover the possession of certain real estate, to quiet her title to a portion of the same, and for a mandatory injunction against the maintenance of a partition fence.
The complaint was in four paragraphs. A demurrer to each was overruled, and answers in denial of the several paragraphs were filed by the appellant. The cause was tried by the court, and a finding upon each paragraph of the complaint was made in favor of the appellee. On motion of one of the codefendants of the appellant, the causes of action set forth in the first, second, and fourth paragraphs of the complaint were docketed as a separate suit; that stated in the amended third paragraph of the complaint stood as a distinct action. Appellant's motion for a new trial was overruled, and separate judgments were rendered and entered in favor of the appellee in the two causes so separated and docketed. This appeal was taken from the judgment upon the third paragraph of the complaint so docketed as a separate action.
The errors assigned are the decisions of the court overruling the demurrer to the third paragraph of the complaint, and the motion for a new trial.
The cause of action stated in the third paragraph of the complaint, as amended, which was the alleged unlawful maintenance of a fence constituting a nuisance, was improperly joined with the causes of action set out in the first, second, and fourth paragraphs, which were for the recovery of real estate, and to quiet the appellee's title thereto. § 279 Burns 1901, clause 5. While such misjoinder is not ordinarily sufficient ground for a reversal of the judgment, the several causes so improperly united may be separated, on motion, and docketed as distinct actions. § 344 Burns 1901; Langsdale v. Woollen, 120 Ind. 16, 21 N.E. 659; Lane v. State, ex rel., 27 Ind. 108; Cargar v. Fee, 140 Ind. 572, 39 N.E. 93. The procedure in the present case in ordering the several causes of action which were improperly united in the complaint separated and docketed was unobjectionable. After such separation the third paragraph of the complaint, as amended, stood as a separate action, and an appeal was properly taken from the judgment therein. The proceedings and judgment on the first, second, and fourth paragraphs of the complaint were neither necessary nor proper parts of the transcript on this appeal.
Did the court err in overruling appellant's demurrer to the third paragraph of the complaint as amended? It was alleged in this paragraph that the appellee was the owner in fee simple of the east half of lot No. 5, and the east half of the north half of lot No. 6, in Brownlee's addition to the town of Plymouth; that she owned a one-story dwelling-house on the northeast corner of the said premises, in which she and her family resided; that the appellant was the owner of an adjacent lot, on which he and his family resided, the same being the only property between appellee's lot and Pierce street, a public street of said city of Plymouth; that in October, 1901, the appellant erected on the division line between appellee's premises and his own a tight board fence, eight feet high by eighty-six feet long, extending from his shed on the east to his barn on the west, making with those structures, a barrier more than eight feet high and 114 feet long immediately adjacent to the south side of appellee's lot; that a portion of said fence was constructed and maintained partly on the lands of the appellee and partly on the lands of the appellant; that the said fence was solid and shut out the view and the sunshine; that the appellee used her lot for gardening purposes, and that the fence interfered with such use by shading the ground; that before said fence was built the appellee had, for a space of fifty-nine feet, a full, clear, and unobstructed view across appellant's premises to Pierce street; that in building said fence the appellant was actuated by malice only, and constructed the same for the sole purpose of annoying and injuring the appellee and her property, and that he continued to maintain said fence for that purpose only; that the appellant and his wife, Hannah, had lately begun the construction of another fence on appellee's land, beginning at the northeast corner of appellant's barn, and running northeast across appellee's lot, and had set three fence posts and a number of line stakes on appellee's ground, and intended to construct a fence across her...
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