Liggett v. Lozier

Citation32 N.E. 712, 133 Ind. 451
Case DateNovember 28, 1892
CourtSupreme Court of Indiana

133 Ind. 451
32 N.E. 712

LIGGETT et al.

Supreme Court of Indiana.

Nov. 28, 1892.

Appeal from circuit court, Ohio county; A. C. Downey, Special Judge.

Action by Abraham Lozier against William Liggett and Martha E. Liggett for the possession of land. From a judgment for plaintiff, defendants appeal. Reversed.

John B. Coles and George B. Hall, for appellants. G. L. Downey and R. L. Davis, for appellee.

Coffey, J.

This was an action by the appellee against the appellants in the Ohio circuit court for the possession of real estate. The complaint in the cause consisted of two paragraphs. The court overruled the separate demurrer of the appellant William Liggett to each paragraph of the complaint, and he excepted. The court also sustained the separate demurrer of the appellant Martha E. Liggett to the first paragraph of the complaint, and overruled it as to the second paragraph, and she excepted. The correctness of these several rulings of the circuit court is called in question by the assignment of error in this court. In our opinion, the circuit court erred in overruling the demurrer of the appellant William Liggett to the first paragraph of the complaint. That paragraph contains no description of the land sought to be recovered. A complaint for the recovery of the possession of real estate, which does not contain a sufficient description of the land sought to be recovered, is bad on demurrer. Sections 1054, 5225, Rev. St. 1881; Gravel Road Co. v. Moss, 92 Ind. 119;Lenninger v. Wenrick, 98 Ind. 596. It is true that the appellee filed with his complaint, as an exhibit, a copy of a deed executed by the appellants to him for the land in controversy; but such deed, not being the foundation of the action, is no part of the complaint, and cannot be looked to in aid of its allegations. Huff v. City of Lafayette, 108 Ind. 14, 8 N. E. Rep. 701; Pickering v. State, 106 Ind. 228, 6 N. E. Rep. 611; Huseman v. Sims, 104 Ind. 317, 4 N. E. Rep. 42;

[32 N.E. 713]

Jackson v. State, 103 Ind. 250, 2 N. E. Rep. 742. The second paragraph of the complaint proceeds upon the theory that the relation of landlord and tenant exists between the appellee and the appellant William Liggett. There are no allegations in this paragraph against the appellant Martha E. Liggett.

At the conclusion of the prayer for relief against the appellant William Liggett is found this language: “And the plaintiff makes Martha E. Liggett a defendant, as she has some pretended claim to said...

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4 cases
  • Shedd v. American Maize Prods. Co., No. 8372.
    • United States
    • Indiana Court of Appeals of Indiana
    • 16 d5 Abril d5 1915
    ...Atl. 248;Thomas v. McCoy, 30 Ind. App. 555, 66 N. E. 700;Ritchey v. Welsh, 149 Ind. 214, 48 N. E. 1031, 40 L. R. A. 105;Liggett v. Lozier, 133 Ind. 451, 32 N. E. 712. A complaint to enjoin encroachments upon or interference with an easement or right of way is insufficient when it does not f......
  • Oölitic Stone Co. v. Ridge, No. 21,179.
    • United States
    • Indiana Supreme Court of Indiana
    • 9 d4 Janeiro d4 1908
    ...v. Suit, 163 Ind. 282, 285, 286, 71 N. E. 658;Field v. Brown, 146 Ind. 293, 301, 302, 45 N. E. 464. In Crabb v. Orth, 133 Ind. 12, 32 N. E. 712, this court said: “It would be unjust to the adverse party, and to the court, to permit a party to assume a definite theory in the trial court and ......
  • Barnett v. The Bryce Furnace Company, 3,755
    • United States
    • Indiana Court of Appeals of Indiana
    • 7 d2 Maio d2 1901
    ...Co., 45 Ind. 134; Johnson v. Moore, 112 Ind. 91, 13 N.E. 106; Price v. Bayless, 131 Ind. 437, 31 N.E. 88; Liggett [60 N.E. 364] v. Lozier, 133 Ind. 451, 32 N.E. 712; Wabash, etc., Union v. James, 8 Ind.App. 449, 35 N.E. 919. Judgment affirmed. ...
  • Crabb v. Orth
    • United States
    • Indiana Supreme Court of Indiana
    • 29 d2 Novembro d2 1892
    ...the court of original jurisdiction. See authorities cited Elliott, App. Proc. § 470. The appellant acted upon the theory that there was an [32 N.E. 712]insufficient notice, and did not in any appropriate mode challenge the proceedings of the board of commissioners, and to that theory he mus......

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