Leckrone v. Lawler, 18448

• Decision Date: 31 March 1954
• Docket Number: No. 18448,18448
• Citation: 125 Ind.App. 35,118 N.E.2d 381
• Parties: LECKRONE et al. v. LAWLER et al.
• Court: Indiana Appellate Court

Page 381

118 N.E.2d 381

125 Ind.App. 35

LECKRONE et al. v. LAWLER et al.

No. 18448.

Appellate Court of Indiana, In Banc.

March 31, 1954.

Asa Leckrone, Warsaw, Charles C. Campbell, Rochester, for appellants.

Widaman & Widaman, Warsaw, Albert B. Chipman, Plymouth, for appellees.

KELLEY, Judge.

This is an action for possession of real estate and damages for wrongful detention thereof brought by appellants against appellees on June 27, 1950. Upon trial of the issues, appropriately made, the court found requested special findings of fact and entered four conclusions of law thereon, favorable to appellees. A conditional judgment for appellees followed, which was afterward made final pursuant to our certification to the clerk for such purpose.

Appellants assign as error the overruling of their motion for a new trial and that the court erred in its conclusions of law numbered 1, 2 and 3. The new trial motion contained five specifications, only one of which presents any question, namely: that the finding of the court is contrary to law. As the finding was negative to appellants who had the burden of proof, they cannot challenge the insufficiency of the evidence to sustain the finding, Myers v. Brane, 1944, 115 Ind.App. 144, 57 N.E.2d 594; Wilson v. Rollings, 1938, 214 Ind. 155, 158, 14 N.E.2d 905. However, they may and do assert that the finding is contrary to law and thus is presented the question whether they were entitled, under the evidence, to relief which was denied to them by the finding. Wilson v. Rollings, supra.

Appellees criticize appellants' brief as not complying with pertinent rules of the court and urge that the brief presents no question. That appellants' brief leaves much to be desired in many respects must be admitted. While the rules may not be relaxed to the point that resort to the record becomes imperative to ascertain the substance of the grounds urged for reversal, yet if the brief, though deficient in technical form, contains a sufficient presentation to indicate a good faith effort on the part of the author to comply with the rules and enable us to judiciously comprehend the propositions advanced, we will be reluctant to fatally condemn it. Each of appellees' relevant animadversions have been thoughtfully weighed and we are constrained to hold that appellants' brief evidences a good faith effort to comply with the applicable rules. From it we may, and do, garner the projected legal propositions submitted for determination. Aetna Life Insurance Co., Hartford, Conn., v. Nicol, 1949, 119 Ind.App. 441, 444, 86 N.E.2d 311.

The issues made at the trial presented for adjudication by the court the following questions: whether under the evidence appellants were entitled to possession of the real estate; whether appellees wrongfully detained the same from appellants and, if so, the damages, if any, resulting to appellants. The special findings of the court indicate that the determining factor in the case was whether the terms of a certain written lease afforded appellees rightful possession of the real estate, as lessees.

The court found, by Finding No. 1, that on or about July 3, 1939, one Theodore Parker entered into a written lease with appellees, which lease is made a part of the finding. It appears from the lease, as the same is incorporated in the finding, that said Parker, as first party, leased the real estate to appellees, as second parties, for the period from July 3, 1939 to July 3, 1949, and appellees covenanted to pay as rental $50 in cash and 'the balance of the rent of fifty (50) dollars' to be paid to Parker 'within the last five (5) years of the lease.' Appellants derive their title to the real estate from said Theodore Parker and on April 13, 1942, the latter assigned all his right, title and interest in and to said lease to the appellant, Irvin Leckrone. The lease contained this provision:

'It is further agreed that the party of the second part shall at the expiration of this lease have the first right to release the same plot at the same price of two (2) dollars per foot for any succeeding period of ten (10) years.'

It seems needless to set out the lease in toto as the determination of the substantive question raised on this appeal in the main calls in question only said quoted provision. By its Finding No. 7, the court found that 'under the lease set forth in Finding No. 1, the defendants (appellees) are entitled to the first right to another ten-year rental at the same rental rate and all the other conditions contained in the lease.'

The court further found in Findings Nos. 2 and 5 that appellees had paid the rent due under the original lease (July 3, 1939 to July 3, 1949) and that appellees, prior to July 3, 1949, had tendered appellants the sum of $50 in cash as and for the $50 rental to which appellants were entitled from the appellees for the rental period of July 3, 1949 to July 3, 1959, and that said tender was 'refused' by appellants; that appellees in open court at the hearing and during the trial offered to pay the clerk of the court the sum of $100 as the rental for said period of July 3, 1949 to July 3, 1959. By Finding No. 9, the court provided that the appellees 'shall pay' to the clerk of the court the sum of $100 within ten days from the date of judgment.

Conclusion of law No. 3 was that 'If' the plaintiffs (appellants) pay said $100 to the clerk within ten days from date of judgment, then plaintiffs (appellants) shall be entitled to recover nothing further from the defendants (appellees). (Our emphasis.) It is obvious that the court mistakingly used the emphasized word 'plaintiffs' for 'defendants' and we read the conclusion as if the word 'defendants' appeared in the place of 'plaintiffs'. The judgment of the court likewise provides for the payment of $100 by the appellees to the clerk. The record now shows that appellees made such payment.

Conclusion No. 1 was that the law is with the appellees; Conclusion No. 2 that appellees have not wrongfully occupied the real estate and have not unlawfully kept appellants out of the possession thereof; and Conclusion No. 4 was that 'under the facts above found', the lease was extended for an additional 10 year period from July 3, 1949. We have previously referred to Conclusion No. 3.

The prevailing rule in Indiana has been declared to be that a lease provision giving the lessee the first right to re-lease does not vest in the lessee an absolute right to a further term, but only a preferential or prior right thereto in the event the lessor then desires to re-lease the premises, Buddenberg v. Welch, 1933, 97 Ind.App. 87, 185 N.E. 865, and the appellees do not appear to contend to the contrary.

Instead, as we understand their brief, appellees urge three contentions, which are: (1) That under the lease the appellees had the right to erect cottages or buildings on the real estate and the right to remove them 'during the life' of the lease, and that such provision shows an intention 'of at least one renewal or release'; (2) That the burden of proof that they did not desire to lease the property on or immediately after July 3, 1949, was on appellants and, as the findings were silent as to such desire of appellants, it is to be treated as a finding against appellants; and (3) That the present controversy between the parties was adjudicated by a prior judgment of the Wabash Circuit Court.

By their first contention appellees advance the unique proposition that the lease does not provide for removal of the buildings 'before July 3, 1949', and, therefore, this 'elearly shows an intention of at least one renewal or release.' Since July 3, 1949 was the termination date of the original lease, we fail to appreciate the efficacy of this line of reasoning.

This is an action by appellants in ejectment for the possession of the described real estate. The appellees, by their answer, denied the allegations of the complaint and made defense to the action. Under such circumstances, the burden of proving lawful possession was upon the appellees. Carver v. Carver, 1884, 97 Ind. 497, 519, 520; Masepohl v. Heimbach, 1900, 43 Ind.App. 632, 88 N.E. 316; Burns', 1946 Replacement, § 3-1315. Appellants put into evidence the lease in question. The lease, on its face, provided that the term thereof was from July 3, 1939 to July 3, 1949. Upon this prima facie showing, the onus shifted to appellees to prove that their continued possession beyond the term of the lease was lawful. However, the record is devoid of any evidence that appellants desired or had intended or attempted to further lease the premises to appellees or any one else. It follows that the failure of the court to make a finding on that point does not constitute a finding against the appellants thereon and appellees' second contention cannot be sustained.

The record discloses that on June 30, 1949, three days prior to the expiration of the lease term, the appellees commenced an action against appellants in the ...