Newkirk v. Watson

• Citation: 161 N.E. 704,87 Ind.App. 473
• Decision Date: 31 May 1928
• Docket Number: 13,071
• Parties: NEWKIRK v. WATSON ET AL
• Court: Indiana Appellate Court

161 N.E. 704

87 Ind.App. 473

NEWKIRK v. WATSON ET AL

No. 13,071

Court of Appeals of Indiana

May 31, 1928

From Henry Circuit Court; J. R. Hinshaw, Judge.

Action by Andrew Watson and another against Edna M. Newkirk to abate a nuisance and for damages to plaintiff's real estate. From a judgment for plaintiff, the defendant appeals.

Affirmed.

C. A Taughinbaugh and Arthur M. Dearth, for appellant.

Evans & DeWitt and Walterhouse & Miller, for appellees.

MCMAHAN J. Dausman, J., absent.

OPINION

MCMAHAN, J.--

Action by appellees against appellant to abate a nuisance and for damages to appellees' real estate. There was a judgment for plaintiffs abating the nuisance and for $ 100 damages. Defendant appeals and contends: (a) That the trial court had no jurisdiction of the cause; (b) that the court erred in overruling her demurrer to the complaint; and (c) in overruling her motion for a new trial.

The record shows that on October 3, 1925, the plaintiffs dismissed the cause and were given leave to withdraw papers from file. Four days later, the parties appeared, the cause was reinstated and the defendant filed a demurrer to the complaint. The venue was changed from Delaware county to Henry county, where the defendant appeared and filed a second demurrer to the complaint. The demurrer being overruled defendant filed an answer of general denial.

Appellant says the trial court had no jurisdiction because the record does not show a refiling of the complaint after the cause was reinstated. There is no merit in this contention. When the cause was reinstated, it took its place on the docket and stood the same as if it had not been dismissed. Appellant must have so understood it, as immediately after the cause was restored to the docket, she filed a demurrer to the complaint. When the venue was changed to Henry county, the clerk of the Delaware Circuit Court certified to and transmitted to the Henry Circuit Court a transcript of the proceedings and set out therein the complaint, which he certified was filed and on file in his office. After the transcript was so filed in the Henry Circuit Court, appellant appeared therein and filed her demurrer to the complaint. She later filed answer and, without raising any question concerning the refiling of the complaint, went to trial. The trial court had jurisdiction, both of the subject-matter and of the parties.

The next contention is that the court erred in overruling the demurrer to the complaint, on the ground that there was a defect of parties defendant. Appellees contend no question is presented as to the sufficiency of the complaint for the reason that the demurrer does not name or designate the proper parties. The demurrer is general in form. It simply states "there is defect of parties defendant." No attempt is made to name those who should be made parties defendants. Such a demurrer presents no question. Appellant is in the same situation as if she had filed no demurrer. A demurrer for defect of parties must designate the proper parties. State, ex rel., v. McClelland, Trustee (1894), 138 Ind. 395, 37 N.E. 799.

Appellant next contends that the decision of the court is not sustained by sufficient evidence and that it is contrary to law. The complaint alleged that appellant was the owner and in possession of a certain described lot in the city of Muncie on which there was a six-room dwelling house which appellant leased to people who conducted themselves in such manner as to cause the house so maintained to be a nuisance. It is not necessary that we state the particular acts and conduct alleged, and we refrain from doing so. The sufficiency of the facts alleged to state a cause of action was not challenged by demurrer. The only objection to the sufficiency of the evidence to sustain the decision relates to the description of the real estate. The evidence is sufficient to warrant the court in finding that the house referred to by the witnesses was the house described in the complaint. Appellant makes no claim that the evidence does not clearly identify and describe the property described in the complaint. The complaint, after specifically describing the property, alleges that it is commonly known and designated as "805 Macedonia...