Richwine v. Presbyterian Church of Noblesville

• Decision Date: 22 September 1893
• Citation: 34 N.E. 737,135 Ind. 80
• Parties: RICHWINE v. PRESBYTERIAN CHURCH OF NOBLESVILLE.
• Court: Indiana Supreme Court

135 Ind. 80

34 N.E. 737

RICHWINE

v.PRESBYTERIAN CHURCH OF NOBLESVILLE.

Supreme Court of Indiana.

Sept. 22, 1893.

Appeal from circuit court, Marion county; E. A. Brown, Judge.

Action by the Presbyterian Church of Noblesville against George C. Richwine for an injunction, the possession of real estate, and for damages. From a judgment for plaintiff, defendant appeals. Affirmed.

Shirts & Kilbourne and Stephenson & Fertig, for appellant. F. B. Pfaff and Kane & Davis, for appellee.

HOWARD, J.

The appellee alleges in its complaint that said church is the owner and entitled to the possession of a part of lot 5 in square 14 in the town (now city) of Noblesville, “beginning at a point on the west line of said lot, and three feet south of the foundation and south wall of said church building, and run thence east, 132 feet, to the east line of said lot; thence north to the north line of said lot; thence west, 132 feet, to the west line of said lot; and thence south to the place of beginning.” It is further alleged “that said church has held the exclusive and adverse possession of said premises, claiming to be the owner thereof, continuously, for forty years;” and it is averred that the defendant, the appellant in this appeal, “is entering and threatening to enter on said premises, and is erecting and threatening to erect thereon buildings for his own use and occupancy, and that, unless restrained by this court, he will make excavations and erect such buildings on said premises, and will so construct and erect the same as to shut off the light and air on the south side of said building, and interfere with the use and enjoyment thereof by said members of said church, who hold and have held devotional and religious exercises therein for forty years last past;” asking for damages and an injunction. In a supplemental complaint it is alleged, “that said defendant, since the commencement of this suit, and with full knowledge of the plaintiff's rights, as above stated, has entered upon and taken possession of said real estate, although forbidden by the plaintiff so to do, and has made excavations thereon, torn down and removed fences therefrom, erected buildings, walls, and other structures thereon for his own use and benefit, and for his own exclusive occupancy;” asking for damages and possession. A demurrer to the complaint for improper joinder of causes of action was overruled, as was also a motion to strike out the supplemental complaint, and also a motion to separate the complaint into paragraphs; also a demurrer to the complaint for want of facts. The answer is in four paragraphs: (1) Admitting the acts complained of, but denying that they took place on any part of said lot “other than 26 2-5 feet off of the south side thereof;” (2 and 3) the statute of limitations; and (4) the general denial. There is also a cross complaint to quiet title to said “twenty-six and two-fifths feet off the south side of lot five.” A reply in general denial was made to the first three paragraphs of the answer, and an answer in three paragraphs to the cross complaint, (1) denying appellant's title to any part of said lot five, “situate and lying north of the line formerly and until recently occupied by the fence that stood three feet south of, and parallel with, the south wall of the church building;” (2 and 3) the statute of limitations. A demurrer to these paragraphs of answer to the cross complaint was overruled, and the appellant replied in general denial. On a trial by the court, there was a finding for the appellee. A decree was entered, awarding damages in the sum of one cent, quieting the title of appellee, awarding a writ of ejectment against appellant, and enjoining the appellant from any further interference with appellee's possession and enjoyment of said real estate.

Numerous rulings on the pleadings are assigned as errors and discussed by counsel. Whether it was error to overrule the demurrer to the complaint for improper joinder of causes is a question which it would avail nothing to decide, for the reason that the statute has expressly provided that such error, if it exist, shall not be sufficient to reverse a judgment. Rev. St. 1881, § 341; Rennick v. Chandler, 59 Ind. 354;Coan v. Grimes, 63 Ind. 21;Baals v. Stewart, 109 Ind. 371, 9 N. E. Rep. 403.

We do not think the court erred in refusing to strike out the supplemental complaint. The statute (Rev. St. 1881, § 399) authorizes the court to allow supplemental pleadings showing facts which occurred after the former pleadings were filed. The original complaint stated that appellant was threatening to enter upon appellee's property, and asked that he be enjoined from so doing. The supplemental complaint averred that since the filing of the first complaint the appellant had actually entered upon the premises, and asked that possession be restored to appellee. We think the pleading was in conformity with the statute, and that it was in harmony with the cause of action made by the original complaint. “The office of the supplemental complaint *** is to bring upon the record such new facts that the court may grant the proper relief upon the facts existing at the time of the final decree.” Patton v Stewart, 24 Ind. ??43. In the case at bar the additional averments in the supplemental complaint enabled the court to give to the appellee a complete remedy in the final decree; the order of ejectment being based upon the facts stated in the supplemental complaint, and proved upon the trial. The policy of the law is, so far as it can be done, to give a complete remedy in one suit for all wrongs complained of, growing out of the same transaction, and so put an end to the litigation. The supplemental pleading in this case, taken with the original, formed but a single complaint. This complaint was, in effect, a claim for the recovery of real property, with damages for injury to the land, and a prayer to quiet title, all of which may be united, as appears by clause 5 of section 278, Rev. St. 1881. But our courts are courts of law and equity, and while the court in this case had undoubted power to render a decree for possession, quieting title, and damages, it also had power, in the same decree, to enjoin the commission or continuance of the injury complained of. The prayer for injunction was therefore properly united with the prayer for damages, for recovery of possession of the real estate, and to quiet title to the same. Bonnell v. Allen, 53 Ind. 130;Field v. Holzman, 93 Ind. 205;Bishop v. Moorman, 98 Ind. 1. We think that the pleading, as a whole, was good, and that the motion to strike out the supplemental complaint was properly overruled.

Whether the motion to separate the complaint into paragraphs should have been allowed, need not be inquired into. The error, if any, was harmless, and, in any case, could not avail on appeal. Section 341, Rev. St. 1881; Railway Co. v. Rooker, 90 Ind. 581.

The answer to the cross complaint was not bad for the reason that it disclaimed title in the appellee to all land claimed by appellant, and lying south of “the line formerly and until recently occupied by the fence that stood three feet south of and parallel with, the south wall of the church building,” and denied title in the appellant to all land north of that line. This answer, indeed, states the principal issue between the parties, and nearly the whole body of the evidence given in the case was directed to the question of the existence or nonexistence of the line of division thus referred to.

The appellant made three motions to modify the decree in accordance with the views maintained by him in his pleadings, and supported by the evidence adduced by him. The motions were severally overruled. The court found for the appellee on its pleadings, and on the evidence given in the case. This finding resulted in giving to appellee the land in dispute. To sustain the motions of appellant to modify the decree so as to give him a part of the property already found to belong to the appellee would have been quite inconsistent. Nor can it be said, as counsel for appellant contend, that appellant acted in good faith in entering upon the disputed territory, and erecting his buildings thereon. This entry was made and the buildings erected by him after the filing of appellee's original complaint, and against the express prohibition of appellee. Appellant acted with his eyes open, and at his own peril. He was not taken advantage of, nor unawares; but, after suit was brought to enjoin his entering upon the premises, he deliberately proceeded to do what the court was about to decide whether he...