Moore v. American Nat. Bank at Indianapolis

• Decision Date: 19 January 1944
• Docket Number: 17209.
• Citation: 52 N.E.2d 513,114 Ind.App. 551
• Parties: MOORE v. AMERICAN NAT. BANK AT INDIANAPOLIS.
• Court: Indiana Appellate Court

52 N.E.2d 513

114 Ind.App. 551

MOORE v. AMERICAN NAT. BANK AT INDIANAPOLIS.

No. 17209.

Appellate Court of Indiana, in Banc.

January 19, 1944

E Louis Moore, of Indianapolis, for appellant.

John G. Rauch and James R. Chase, both of Indianapolis, for appellee.

CRUMPACKER Chief Judge.

This appeal is pending on the appellee's verified motion to dismiss supported by affidavits, the factual contents of which are undisputed. The burden of said motion is to the effect that the judgment from which this appeal is taken was entered by agreement of the parties in open court, and that the appellant has accepted and received the benefits of said agreement in which the judgment involved has its source.

The facts as we gather them from the record and said affidavits are as follows: The action out of which this appeal grows involves the relationship of landlord and tenant and is for the possession of real estate and damages for the unlawful detention thereof. It was filed in the Municipal Court of Marion County, Room No. 1, by the appellee as the landlord against the appellant as the tenant. On June 30, 1943, the appellant appeared in said court and filed a verified motion for a change of venue from the regular, acting and qualified judge thereof which motion was, on the same day, overruled by the court and a change of judge denied. The cause was reached for trial on July 2, 1943, at which time both parties were present in open court. Before commencement of the trial it was agreed by and between the appellant and appellee that the trial of the cause should be continued until September 1 1943, during which time the appellant would seek and find other space into which he would move his office on or before said date and thereupon deliver to the appellee prompt and peaceful possession of the property here involved. That until September 1, 1943, the appellee would not disturb the appellant in the possession of the office space in controversy and in the meantime said appellant would pay to the appellee, commencing on July 2, 1943, the sum of $15 per month to apply on the liquidation of damages until a total sum of $400 had been so paid, whereupon the appellee would acknowledge its claim for damages to be fully satisfied. If the appellant was still in possession of the disputed office space on September 1, 1943, the cause would then be submitted to the court and a judgment for the appellee for possession and $500 damages entered by consent of the parties. The court thereupon, to-wit, July 2, 1943, entered the following order "Trial called. Plaintiff and defendant in person and by agreement cause continued to September 1, 1943 for entry of agreed judgment for possession of real estate and 500.00 dam." That in compliance with the above agreement the appellee permitted the appellant to remain in the quiet possession of the disputed premises and the appellant in turn made two installment payments of $15 each on July 2, and August 2, 1943, after which he refused to pay further and failed to vacate and deliver possession of said office space on September 1, 1943, as per his agreement. On September 3 1943, with both parties in open court, the regular judge thereof caused the following judgment to be entered of record:

"Comes now, the parties and by agreement this cause is submitted to the court for finding and judgment and the court being duly advised in the premises finds for the plaintiff and against the defendant E. Louis Moore that the plaintiff recover $500.00 damages and costs herein.

"It is therefore considered and adjudged by the court that the plaintiff have and recover of and from the defendant E. Louis Moore the sum of $500.00 and costs herein expended and taxed at $--- with ------relief from valuation and appraisement laws. Together with the possession of the real estate described in the complaint as follows towit: Lots 1 and 2 in square 46 in the City of Indianapolis. That a certain building known as the Stewart Block is situated upon said real estate, at the south-east corner of Illinois and Ohio Streets, Indianapolis, Indiana. Room No. 208 on the second floor of said building." From the above facts we think it clear that the judgment complained of was entered by agreement of the parties and that the appellant has accepted the benefits of the agreement upon which said judgment is predicated. It is a well settled rule that there may be no appeal under such circumstances. Maiben v. Manlove, 1911, 48 Ind.App. 617,

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