Mansur v. Streight

• Decision Date: 29 October 1885
• Docket Number: 11,957
• Parties: Mansur et al. v. Streight et al
• Court: Indiana Supreme Court

3 N.E. 112

103 Ind. 358

Mansur et al. v. Streight et al

No. 11,957

Supreme Court of Indiana

October 29, 1885

From the Marion Superior Court.

The judgment of the special term is affirmed, with costs.

H. J Milligan, B. Harrison, W. H. H. Miller and J. B. Elam, for appellants.

J. A Holman and F. Winter, for appellees.

OPINION

Mitchell, C. J.

The only question presented by the record and assignment of errors in this case involves an inquiry concerning the sufficiency of the complaint after a finding and judgment for the plaintiff. The suit was to recover the possession of certain real estate in the city of Indianapolis.

Section 1050, R. S. 1881, provides that "Any person having a valid subsisting interest in real property and a right to the possession thereof may recover the same by action to be brought against the tenant in possession," etc.

Section 1054 is as follows: "The plaintiff in his complaint shall state that he is entitled to the possession of the premises, particularly describing them, * * * and that the defendant unlawfully keeps him out of possession."

The averments in the complaint material to be noticed are, that the plaintiffs are the owners of the land in controversy, and that the defendants "unlawfully keep them out of possession of the same."

It is contended that because the complaint did not contain the averment that the plaintiffs are entitled to the possession, it was not sufficient.

For the appellee, it is argued that even though the complaint may not have been sufficient, as against a demurrer, it is good after finding and judgment. That an averment that the plaintiff is entitled to the possession is essential to withstand a demurrer in actions like this, is settled. Miller v. Shriner, 87 Ind. 141; McCarnan v. Cochran, 57 Ind. 166; Levi v. Engle, 91 Ind. 330.

In Swaynie v. Vess, 91 Ind. 584, it was held that while such averment was necessary, it was not required to be made in the exact words of the statute. If the averments in the complaint are such as to show the plaintiff's right to the possession, and that the defendant unlawfully detains it from him, it is sufficient.

Taking it as settled that it is necessary, either to aver in terms that the plaintiff is entitled to the possession, or to state facts from which his right of possession arises by necessary implication, the inquiry still remains, is the complaint in this record within the rule?

In...