Haas v. Rathburn, 19803

• Decision Date: 25 March 1965
• Docket Number: No. 2,No. 19803,19803,2
• Citation: 137 Ind.App. 172,205 N.E.2d 329
• Parties: Frank HAAS and Martha Haas, Appellants, v. Russell RATHBURN and Ruth Rathburn, Appellees
• Court: Indiana Appellate Court

Page 329

205 N.E.2d 329

137 Ind.App. 172

Frank HAAS and Martha Haas, Appellants, v. Russell RATHBURN and Ruth Rathburn, Appellees.

No. 19803.

Appellate Court of Indiana, Division No. 2.

March 25, 1965.

Rehearing Dismissed April 29, 1965.

See 206 N.E.2d 389.

[137 INDAPP 172]

Virgil J. McCarty, Thomas J. O'Connor, Brookville, for appellants.

Cecil C. Tague, Sr., Roger H. Smith, Brookville, for appellees.

SMITH, Judge.

This appeal is from an action instituted by appellants Frank Haas and Martha Haas to obtain a review of a decision and judgment of the Franklin Circuit Court. The action sought to eject the appellees herein, Russell Rathburn and Ruth Rathburn from the premises leased by the appellants to the appellees. The action was brought pursuant to Ch. 38, Sec. 671, Acts of 1881 (Special Session), Burns' Indiana Statutes 3-1301. The gravamen on this action, as alleged in appellants' complaint, is based upon violations by the appellees of certain provisions of a leasehold agreement, charging specifically that the appellees had committed certain acts of waste to the leasehold premises and had violated the leasehold agreement in their failure to 'farm said premises in a good farm-like manner' and their failure to 'take care of the stock in a good and farm-like manner.'

The appellants, pursuant to Ch. 254, Sec. 1, of the Acts of 1927, being Sec. 3-1304 Burns' Indiana Statutes, 1946 Replacement, at the time of filing their complaint, filed with the clerk of the court an affidavit stating that they were entitled to the possession of the property described in the complaint, and that the appellees unlawfully retained possession thereof. As the result of the filing of this affidavit, the clerk issued an order directing the Sheriff to seize possession of the property described in the complaint and the affidavit.

The appellees did not elect to remain in possession of the leasehold premises by executing and submitting a written undertaking, payable to the appellees with sufficient surety thereon, pursuant to the provisions of Ch. 254, Sec. 3, Acts of 1927, the same being Burns' Indiana Statutes 3-1306; and they voluntarily vacated the premises of the leasehold premises in question.

[137 INDAPP 174] The appellees filed an answer to appellants' complaint wherein they denied each and every allegation of waste and violation of the leasehold contract; and, in addition, filed a counterclaim against the appellants, alleging that the appellants by merely filing their suit in ejectment had breached the leasehold agreement thereby causing substantial damage to the appellees.

Trial was had by jury which found against the appellants on their prayer for damages and for the appellees on their counterclaim and assessed damages in the amount of $800.00.

The issue of ejectment became moot at the time the appellees voluntarily vacated the leasehold premises and is not now under consideration in this appeal.

Appellants' sole assignment of error is, that the trial court erred in overruling appellants' motion for a new trial.

The appellees based their counterclaim solely on the proposition that the action in ejectment filed by the appellants to take possession of the leasehold premises was a repudiation, without qualification, of the leasehold agreement. They do not allege in their counterclaim any other breach of the leasehold agreement.

The appellants specifically maintain that the verdict and judgment on the counterclaim is contrary to law in that the counterclaim filed by the appellees was premature and had not ripened; and that therefore the verdict on the counterclaim was erroneous. In support of their contention appellants rely upon Trout et al. v. Brown et al. (1954), 125 Ind.App. 381, 123 N.E.2d 647. In that case the plaintiff's complaint was solely for possession of the real estate and damages for unlawful detention. Defendants [137 INDAPP 175] filed a counterclaim to which the trial court sustained plaintiff's demurrer. Appellants refused to plead...