Lenninger v. Wenrick
| Decision Date | 16 December 1884 |
| Docket Number | 11,247 |
| Citation | 98 Ind. 596 |
| Parties | Lenninger v. Wenrick |
| Court | Indiana Supreme Court |
From the Monroe Circuit Court.
The judgment is reversed, with costs, and the cause is remanded with instructions to sustain the demurrer to the complaint and for further proceedings.
J. H Louden and R. W. Miers, for appellant.
J. W Buskirk and H. C. Duncan, for appellee.
This was a suit by the appellee against the appellant for the recovery of real estate. Appellant's demurrer to the complaint having been overruled, and his exception saved to such ruling, he answered by a general denial. The issues joined were tried by the court, and a finding was made for the appellee; and over a motion for a new trial judgment was rendered in her favor as demanded in her complaint.
The first error of which appellant complains in argument is the overruling of his demurrer to appellee's complaint. The point is made and earnestly insisted upon by appellant's counsel, that the complaint is radically and fatally defective in this, that it does not describe any certain or specific parcel of real estate as the subject of the action. The description in the complaint is substantially as follows "A strip 41 rods in width off the west end of the south of the southwest quarter of section 5, town. 10 north, range 1 west, excepting a right of way one rod in width on the south side of said tract, running east from the public road," situate in Monroe county, in the State of Indiana. This description is clearly bad, for the reason that it is impossible to learn therefrom whether the strip is off the west end of the south half, fourth, eighth or twelfth of the southwest quarter, etc. Appellee's counsel concede that the description is insufficient; but they insist that an objection to the complaint on that ground can not be reached by a demurrer for the want of facts, but only by a motion to make the description more specific. Counsel can not be sustained, we think, in this position. Section 1054, R. S. 1881, under which the appellee's action was brought, expressly requires that the plaintiff shall "particularly" describe in his complaint the premises for the possession of which he sues. This section of the statute is substantially a re-enactment of section 595 of the civil code of 1852, under which latter section it has been repeatedly decided by this court that the plaintiff's complaint, in such an action as the one at bar, must describe the premises sued for with reasonable certainty. Leary v. Langsdale, 35 Ind. 74; Jolly v. Ghering, 40 Ind. 139. There is nothing in the complaint by which the description of the real estate sought to be recovered can be rendered...
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Collins v. Andriano
...92; Simmons v. Thompson, 138 Ga. 605, 75 S.E. 671; Deweese v. Maxwell, 125 S.W. 145; Griffin v. Hall, 111 Ala. 601, 20 So. 485; Lenninger v. Wenrick, 98 Ind. 596; Tracy Harmon, 17 Mont. 465, 43 P. 500; Buesing v. Forbes, 33 Fla. 495, 15 So. 209; Holly River Coal Co. v. Howell, 36 W.Va. 489,......
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Shedd v. American Maize Products Company
... ... Price v. Bayless (1892), 131 Ind. 437, 31 ... N.E. 88; College Corner, etc., Co. v. Moss ... (1883), 92 Ind. 119, 123; Lenninger v ... Wenrick (1884), 98 Ind. 596; Marion County ... Lumber Co. v. Tilghman Lumber Co. (1906), 75 ... S.C. 220, 55 S.E. 337; Fox v ... ...
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Shedd v. American Maize Prods. Co.
...26 Ind. App. 418, 59 N. E. 1070;Price v. Bayless, 131 Ind. 437, 31 N. E. 88;College Corner, etc., Co. v. Moss, 92 Ind. 119-123;Lenninger v. Wenrick, 98 Ind. 596;Marion County Lumber Co. v. Tilghman Lumber Co., 75 S. C. 220, 55 S. E. 337;Fox v. Pierce, 50 Mich. 500, 15 N. W. 880, 881;Hagerty......
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Collins v. Andriano
...of possession will know to what land plaintiff is entitled cannot be doubted. Griffin v. Hall, 111 Ala. 601, 20 South. 485; Lenninger v. Wenrick, 98 Ind. 596; Livingston County v. Morris, supra. Unless therefore the fact that the attack upon the petition herein came in at such time, i. e., ......