Pilotte v. Brummett

• Decision Date: 18 August 1975
• Docket Number: No. 2--1173A255,2--1173A255
• Citation: 332 N.E.2d 834,165 Ind.App. 403
• Parties: Norbert PILOTTE, Defendant-Appellant, v. Pearl BRUMMETT et al., Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 834

332 N.E.2d 834

165 Ind.App. 403

Norbert PILOTTE, Defendant-Appellant, v. Pearl BRUMMETT et al., Plaintiffs-Appellees.

No. 2--1173A255.

Court of Appeals of Indiana, Second District.

Aug. 18, 1975.

Charles D. Boomershine, Monticello, Frank E. Spencer, Indianapolis, for defendant-appellant.

Louis Pearlman, Jr., Lafayette, for plaintiffs-appellees.

BUCHANAN, Judge.

CASE SUMMARY

Defendant-Appellant Norbert Pilotte (Pilotte) appeals from a trial court judgment ejecting him from a farm owned by Appellees, Pearl Brummett, Sidney Farney, Grace Stoller, and Josephine Farney (collectively the Landlords), claiming (1) insufficient evidence to support the Landlords' possessory action for ejectment; (2) insufficient notice to terminate Pilotte's tenancy; and (3) erroneous admission of Josephine Farney's (Josephine) agency relationship to the Landlords.

We affirm.

FACTS

The evidence and facts more favorable to the trial court's judgment are:

In the fall of 1970 Pilotte and his wife met with Josephine, Grace Stoller (Grace) and her husband, Walter, at the Stoller home to discuss the leasing of the Landlords' sixty-six (66) acre farm located in Tippecanoe County, Indiana, which they inherited in 1959.

Pilotte desired a three- or five-year written lease, but it was ultimately orally agreed that Pilotte would rent the farm on a year-to-year tenancy, beginning March 1, 1971 (farm leases in the area customarily began March 1 and ended February 28). The terms of the oral agreement provided, inter alia, for crop sharing with the Landlords paying for one-half of the seed corn, seed beans and fertilizer.

Pilotte farmed and fertilized the disputed property as agreed during the 1971--72 farm year (March 1--February 28), and the only conversation relating to Pilotte's farming for the 1972--73 farm year occurred when Pilotte and Grace and Walter Stoller were cutting stray corn stalks out of the bean field in June of 1971, and Pilotte said:

'Well, I don't know what you folks think about this mess, I wouldn't know but what a little later you might give me a notice to move.'

Grace then replied,

'No, we're going to give you a chance of one more year.'

There was no conversation about renting the farm for the 1973--74 farm year until November 24, 1972, when Pilotte received a 'Legal Notice to Quit' (Notice; hereinafter set forth) from the Landlords. Josephine, Grace and Walter Stoller were present when the Notice was delivered to Pilotte by the Sheriff. When Pilotte expressed disappointment, they indicated to him their dissatisfaction with his farming methods and the fact his wife was no longer living with him.

Prior to the Notice neither Pilotte nor the Landlords requested renewal of the lease for the 1973--74 farm year. In the fall of 1972 Pilotte fertilized the acreage as he had done previously, a practice which was considered normal in that region, and was authorized by the Landlords. Also Pilotte planted fall wheat, which was not authorized by them.

In December of 1972, Pilotte notified the Landlords that he was not going to vacate the real estate and would hold over.

Thereafter, on December 26, 1972, the Landlords brought an Ejectment action seeking possession of the farm on the termination of the year-to-year lease, February 28, 1973, the end of the 1972--73 farm year. Pilotte's response was an answer stating as one of his defenses that the Complaint did not state a claim on which relief could be granted . . . without further specificity.

Subsequent to the date of termination of Pilotte's tenancy, the court trial commenced March 13, 1973, and judgment was rendered March 30, 1973.

ISSUE ONE

Is the trial court judgment granting the Landlords' ejectment action supported by sufficient evidence?

As to ISSUE ONE, Pilotte contends that for a successful judgment in ejectment the plaintiffs (Landlords) must have a right to possession at the time the action is commenced. Secondly, Pilotte asserts that the Landlords, by their conduct, are estopped to claim the tenancy ended on February 28, 1973.

The Landlords reply that at the time the trial commenced and the judgment rendered the Landlords were entitled to possession and Pilotte was wrongfully withholding possession. Further, the Landlords deny any estoppel and contend that Pilotte understood and agreed to the year-to-year lease.

DECISION--ISSUE ONE

CONCLUSION--It is our opinion that under the particular circumstances of this case the judgment of the trial court ejecting Pilotte should be affirmed.

Pilotte's insistence that there is insufficient evidence to support the trial court's judgment evicting him divides into two parts. First, even though he was given sufficient and timely statutory notice to quit the premises prior to expiration of his year-to-year tenancy he would have us reverse the ejectment judgment because the Landlords did not have the immediate right to possession at the time the action was commenced . . . although the right to possession did exist at the time of trial and judgment.

Correctly he contends that the ejectment statute (IC 1971, 34--1--48--1 (Burns Code Ed.)) ¹ requires that the one seeking ejectment must have an immediate right to possession at the time of the commencement of the ejectment action. Case law is to the same effect, the most recent one being McClellan v. Beatty (1944), 115 Ind.App. 173, 53 N.E.2d 1013, 55 N.E.2d 327. Also see, Swaynie v. Vess (1883), 91 Ind. 584; Wilson v. Jinks (1917), 63 Ind.App. 615, 115 N.E. 67; Welborn v. Kimmerling (1909), 46 Ind.App. 98, 89 N.E. 517.

Typical is Welborn v. Kimmerling, supra::

'It is a familiar rule that a plaintiff in ejectment must recover on the strength of his own title, and show in himself a present right to enter and (take possession) without regard to the character of the defendant's possession. In this contention appellant is correct. Clawson v. Doe (1840), 5 Blackf. 300; Stackhouse v. Doe (1841), 5 Blackf. 570; Doe v. Brown (1844), 7 Blackf. 142, 41 Am.Dec. 217; Prentice v. Wilson (1852), 14 Ill. 91; Prigg v. Pennsylvania (1842), 16 Pet. (U.S.) * 539, 10 L.Ed. 1060.'

46 Ind.App. at 103, 89 N.E. at 519.

However, none of these cases presented the exact factual situation before us, i.e., a proper and timely statutory notice to quit served on a year-to-year tenant who promptly indicates refusal to quit the premises (and does in fact hold over), prompting the landlord to commence an ejectment action, and, additionally, failure of the tenant to properly plead the landlord's lack of present right of possession, with trial held and judgment rendered after the landlord's right to possession has matured.

For us to reverse the judgment now would be to allow a technicality to seize reason by the throat.

The entire thrust of the Indiana Rules of Procedure and of the Rules of Appellate Procedure is that judgments are not reversed for inconsequential errors. AP. 15(D) expresses this noble objective in these words,

'nor shall any judgment be stayed or reversed, in whole or in part, where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below.'

This underlying philosophy is also expressed in TR. 1, 'They (the Rules) shall be construed to secure the just, speedy, and inexpensive determination of every action'. Harvey and Townsend emphasize 'that technicality be subordinated to substance, and that error be ignored unless shown by the protesting party to have been prejudicial to him.' 4 Harvey and Townsend, Indiana Practice § 61.1, p. 240. See, Civil Code Study Commission Comments to Indiana Rules of Procedure, Trial Rule 1; 1 Harvey and Townsend, supra, § 1.1, p. 212.

The folly of allowing form to triumph over substance is also recognized by TR. 61 ² (HARMLESS ERROR), which admonishes courts to 'disregard any error or defect in the proceedings which does not affect the substantial rights of the parties'.

Equity looks to substance rather than form; State ex rel. McGonigle v. Madison Circuit Ct. (1963), 244 Ind. 403, 419, 193 N.E.2d 242; State v. Ahaus (1945), 223 Ind. 629, 63 N.E.2d 199, 204; Wabash Valley Coach Co. v. Turner (1943), 221 Ind. 52, 65--66, 46 N.E.2d 212; Stillabower v. Foster (1966), 140 Ind.App. 32, 37, 222 N.E.2d 292; Leeka v. Muncie Savings & Loan Co. (1919), 71 Ind.App. 318, 325, 124 N.E. 762.

To reverse this case for retrial would be an empty and futile gesture. The factual issues on the merits have already been decided and the likelihood of a different result being reached are remote. The only reason for reversal is the technicality of Landlords' failure to have a present right to possession at the commencement of the ejectment action--an action apparently prompted by Pilotte's notice that he would not vacate by March 1, 1973.

It appears to us that the merits of the case have been fairly tried and determined and 'petitioner has set forth nothing to indicate that if the cause were tried again on the merits a different result would be reached.' Cantwell v. Cantwell (1957), 237 Ind. 168, 178, 143 N.E.2d 275, 280 (cert. denied, 356 U.S. 225, 78 S.Ct. 700, 2 L.Ed.2d 712). Nor has Pilotte shown how he has been prejudiced by the Landowners' premature action. Particularly is this so because Pilotte may have invited the premature ejectment suit by his own action.

At the risk of engaging in vain repetition, we emphasize that in reaching the conclusion that the judgment of the trial court should be affirmed, our holding is narrowly confined to the peculiar circumstances of this case. We are not holding that the Landlords were entitled to a judgment for possession on any date prior to March 1, 1973 (the termination date of Pilotte's lease), nor that it would have been error for the trial court to have dismissed the Ejectment action if properly pleaded. ³ Neither do we decide whether a future lessor is or is not entitled to a declaratory judgment of a future right to possession (Ind.Ann.Stat. §§ 34--4--10--1...