Harmon v. Pohle
| Decision Date | 28 January 1914 |
| Docket Number | No. 8778.,8778. |
| Citation | 103 N.E. 1087,55 Ind.App. 439 |
| Parties | HARMON et al. v. POHLE. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Ohio County; Samuel B. Wells, Special Judge.
Action by William Pohle against Leonard Harmon and others. Judgment for plaintiff, and defendants appeal. Reversed.
Givan & Givan and Thomas S. Cravens, all of Lawrenceburg, and Llewellyn E. Davies, of Aurora, for appellants. N. Cornet, of Lawrenceburg, and McMullen & McMullens, of Aurora, for appellee.
This is the second appeal in this case. See 46 Ind. App. 369, 92 N. E. 119.
[1] Appellant has assigned as error the overruling of the demurrer to the complaint. The sufficiency of the complaint was determined by the former decision. Appellant admits this, but claims the complaint is insufficient unless aided by the lease, to which reference is made, and contends that the lease is not properly made a part of the complaint; that the court in the former opinion did not pass upon the latter question, and for that reason this court should now consider the sufficiency of the complaint as against such objection.
In the former opinion the court said: “The sufficiency of this pleading primarily depends upon the construction of the lease *** made by appellee to appellant,” and then set out the portions of the lease pertinent to the questions under consideration, and held the first paragraph good for the recovery of the possession of the real estate therein described, and also held the second paragraph sufficient as an action for the recovery of damages on account of a breach of the contract. The question then determined and now sought to be again presented is the sufficiency of the complaint. The question as to whether the lease was properly a part of the complaint was a minor and subsidiary question and was necessarily determined when the complaint was considered and held good, for the discussion related to the provisions of the lease, and it is not claimed that the complaint has been amended. A former judgment on appeal rules the case on a subsequent appeal involving the same questions.
It has been held that, where there are incidental questions which were not considered and decided on a former appeal, the court on a subsequent appeal of the same case is not bound to consider the former decision as conclusively adjudicating such questions, but, where such subsidiary or incidental questions are necessarily involved, and where the decision announced could not have been reached without either expressly or impliedly deciding such questions, the judgment on appeal rules the case throughout all subsequent stages either in the “nisi prius” courts or courts of appellate jurisdiction. Forgerson v. Smith, 104 Ind. 246, 3 N. E. 866;Lillie v. Trentman, 130 Ind. 16, 29 N. E. 405;Board, etc., v. Bonebrake, 146 Ind. 311, 45 N. E. 470;James v. L. E. & W. Ry. Co., 148 Ind. 615-617, 48 N. E. 222;Foudray v. Foudray, 101 N. E. 679. When the court held the complaint good and considered the provisions of the lease, by necessary implication, it held the lease to be a part of the comlaint, and that decision is the law of the case as to the sufficiency of the complaint, whether properly so held or not.
[2] Appellee insists that appellant has not complied with the rules of this court in the preparation of his briefs, and that no questions are presented for decision. The briefs are justly subject to some criticism, but they evidence a good-faith effort to comply with the rules of the court, and we shall therefore consider and decide the questions that may be definitely ascertained by a fair and reasonable construction thereof.
A new trial was asked on the ground that the court committed harmful error in the giving of certain instructions.
Some questions are again discussed that were determined by the former decision. Appellants then contended that the lease only required them to clear 15 acres every two years, and this court in the former decision sustained appellee's contention that the lease required appellants to clear 15 acres each year. We think the court correctly construed the lease, but, even if our view differed from that expressed by the former opinion, that decision on the point would control.
[3] The lease in question demised to appellants “the timber land, except the oak groves on the top of the ridges,” of certain lands in Dearborn county, Ind., particularly described as containing in all about 173 acres, “until all the said timber land is clear.” The lessees agreed “to build a tobacco barn on some part of the above-described real estate owned by said lessor.” The lease did not cover all of the 173 acres described therein, and did not require the barn to be built on the particular portion of the land covered by the lease.
It is claimed that instruction 2 given by the court of its own motion is erroneous in stating the substance of the second paragraph of complaint to be “that the lease as set out therein should be changed so that the defendants were to build a barn on plaintiff's real estate so leased to defendants,” in a particular manner, whereas the second paragraph of complaint charges “that plaintiff and defendants after the execution of said lease further agreed that said written lease should be further changed in that the barn provided for in said written lease should be built” according...
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