Masephol v. Heimbach
| Decision Date | 12 May 1909 |
| Docket Number | No. 6,424.,6,424. |
| Parties | MASEPHOL et ux. v. HEIMBACH. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Lake County; H. B. Tuthill, Judge.
Action by Katie Heimbach against Franz Masephol and wife. From a judgment for plaintiff, defendants appeal. Affirmed.
Peter Crumpacker and Daniel J. Moran, for appellants. Wm. J. Whinnery and John O. Boners, for appellee.
Action brought by appellee under the statute to recover possession and quiet title to a part of a lot located in the city of Hammond, Ind. The complaint was in two paragraphs. The first paragraph alleges: That plaintiff is, and for many years past has been, the owner in fee simple of and entitled to the immediate possession of the south seven feet of lot No. 15 in Kleihege's addition to Hammond, Lake county, Ind.; that the defendants and each of them are wrongfully in possession of said real estate without right; that said defendants have not any right, title, or interest in said property, the whole of the legal and equitable title thereof being in the plaintiff; that, by reason of said unlawful possession of said defendants of said real estate, plaintiff is and has been damaged in the sum of $500. The second paragraph is to quiet title to the above-described land in the plaintiff. Separate answers of general denial were filed by the defendants, Franz Masephol and Anna Masephol. Subsequently Franz Masephol withdrew his general denial and filed an answer in two paragraphs, the first of which admits the allegations of the complaint, excepting that Franz Masephol is in possession of the premises therein described. The second paragraph went out on demurrer. Anna Masephol then withdrew her general denial and filed an answer in one paragraph, wherein she disclaims any interest whatever in the property excepting as the wife of her codefendant, Franz Masephol, and denies that she has been or now is in possession of the same. Upon these pleadings, the court withdrew the case from the jury and rendered a finding and judgment for the plaintiff.
As to the action of the court in thus withdrawing the case from the jury, the appellants say in their briefs: “The main point at issue in this appeal is the action of the Lake superior court in withdrawing the submission of the cause from the jury and finding for the appellees on the pleadings.” Appellants contend that, under the statute for the recovery of the possession of real...
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