Langsdale v. Woollen
| Decision Date | 28 May 1889 |
| Docket Number | 14,655 |
| Citation | 21 N.E. 659,120 Ind. 16 |
| Parties | Langsdale v. Woollen, Administrator |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Sept. 24, 1889.
From the Marion Superior Court.
Judgment affirmed, with costs.
J. M Winters, R. Denny and J. R. McFee, for appellant.
H Dailey and W. V. Rooker, for appellee.
This is an action to recover the possession of certain real estate in the city of Indianapolis, together with damages for its detention. The case was tried at special term, a judgment rendered for the appellee, an appeal taken to general term at which the judgment at special term was affirmed, with a modification as to the amount of damages, and this appeal is from the judgment at general term.
Several errors are assigned, to which we need not call special attention, but will consider the several questions discussed by appellant's counsel.
There are three paragraphs in the complaint. By the first and third paragraphs the appellee seeks to recover the possession of the real estate, together with damages on account of the detention thereof. The second paragraph is for the recovery of damages only for the use and occupation of the real estate.
There were demurrers filed to the complaint, and to the several paragraphs of the complaint. The cause of demurrer to the complaint was a misjoinder of causes of action; the cause of demurrer to the several paragraphs was want of facts sufficient to constitute a cause of action.
The appellant also filed a motion asking the court to require the several paragraphs of complaint to be docketed as independent actions, on the ground of misjoinder. In an action to recover the possession of real property, the plaintiff, if entitled to recover the possession, is also entitled to recover with it damages sustained because of being deprived of the possession. R. S. 1881, sections 1058, 1061.
Rents and profits are recoverable for a period of six years anterior to the commencement of the action, and down to the date at which the action is terminated. Section 1058, supra.
The cause of action averred in the second paragraph is to recover rents and profits for the use and occupation of the same real estate named in the first and third paragraphs of the complaint, and covering the same period of time stated in those paragraphs.
The cause of action pleaded in the second paragraph is fully covered by the other paragraphs, but if not it might have been, and as it is or might have been included in the paragraphs for possession, we can not very well see how it can be said that there is a misjoinder when joined with the other paragraphs in a separate paragraph; if there is no misjoinder when included in the same paragraph, there can be no misjoinder when pleaded in a separate paragraph. Pomeroy Rem. Rights, section 494.
But if it were conceded that the court erred in overruling the demurrer there would be no available error, for it is expressly provided by statute that no judgment shall be reversed for error committed in sustaining or overruling a demurrer for misjoinder of causes of action. R. S. 1881, section 341; Miller v. Evansville Nat'l Bank, 99 Ind. 272; Pittsburgh, etc., R. R. Co. v. Swinney, 97 Ind. 586; Coan v. Grimes, 63 Ind. 21.
The only proper way to raise the question of a misjoinder of causes of action is by demurrer. R. S. 1881, section 343; Buskirk Pr. 170; Rutherford v. Moore, 24 Ind. 311.
The court, therefore, committed no error in overruling the motion to separately docket the different paragraphs of complaint.
The first paragraph of the complaint is a paragraph in the ordinary form, and contains all of the substantive as well as formal averments necessary to a good cause of action.
The third paragraph is more specific, but shows the appellee to be the owner of the real estate in controversy and entitled to the possession, and a wrongful detention of the property by the appellant. These paragraphs are entirely sufficient, and the demurrers were rightfully overruled. R. S. 1881, section 1054.
The second paragraph avers an indebtedness due and unpaid from the appellant to the appellee for the use and occupation of the real estate, and states a good cause of action; but if...
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