Ross v. Banta

• Decision Date: 26 September 1893
• Docket Number: 16,570
• Citation: 34 N.E. 865,140 Ind. 120
• Parties: Ross et al. v. Banta
• Court: Indiana Supreme Court

34 N.E. 865

140 Ind. 120

Ross et al. v. Banta

No. 16,570

Supreme Court of Indiana

September 26, 1893

Reported at: 140 Ind. 120 at 145.

From the Cass Circuit Court.

The judgment is reversed at appellee's costs, with instructions to restate conclusions of law relating to sheriff's sale of lot 6; as to lot 5, the judgment is affirmed.

G. E Ross, for appellants.

D. P Baldwin, for appellee.

OPINION

McCabe, C. J.

Appellee sued the appellants in the court below to recover possession of lots 5 and 6 in D. D. Dykeman's first addition to Logansport, Cass county, Indiana. Issue, trial by the court special finding, conclusions of law and judgment thereon for appellee.

This was the second trial of the cause. On the first trial, the appellants recovered judgment. A new trial as a matter of right under the statute was granted the appellee, resulting in a judgment, as above stated, in his favor.

There are twenty assignments of error by appellants, and nine assignments of cross-error by the appellee. Many of these assignments we shall find it unnecessary to examine.

The first assignment questions the overruling of a demurrer to the complaint. The complaint is in the usual statutory form, except that instead of alleging, as the statute provides, that "the defendant unlawfully keeps him out of possession," it alleges that the defendants are in the unlawful possession of said real estate, and wrongfully detain the same from the possession of said property."

If the pleader intended to use the word property, it would clearly make the complaint bad, because section 1054, R. S. 1881, imperatively requires in such a complaint the allegation "that the defendant unlawfully keeps the plaintiff out of possession," or its equivalent. Second Nat'l Bank, etc., v. Corey, 94 Ind. 457; Mansur v. Streight, 103 Ind. 358, 3 N.E. 112; Simmons v. Lindley, 108 Ind. 297, 9 N.E. 360.

But it appears clearly enough that the pleader intended to use the word "plaintiff" in the place where he has used the word "property." The civil code requires us to regard the complaint as having been amended in that respect. R. S. 1881, sections 396, 398, 658.

Besides, there was a special finding in this case, and if it supplied or found the existence of the fact missing or wanting in the complaint, or if it failed to so find, in either case, the ruling on the demurrer would be harmless, because in either event a correct declaration of the law upon the facts found would reach the same legal result as would have been reached with a correct ruling on the demurrer, or with the defect in the complaint obviated by an amendment.

We are not unmindful of the rule that forbids consideration of facts in a special finding or verdict that are outside of the issues. Facts in a special finding or verdict may, in a case of this kind, be said to be outside of the issues only when they are outside of the scope of the issues; otherwise there could be no such thing as a verdict curing a defective complaint. The missing fact in the complaint was within the scope of the complaint, because the complaint being for the recovery of the possession of real estate under the statute, the allegation that the defendant unlawfully keeps the plaintiff out of possession was within the scope of the complaint, though that direct averment was not made.

Where a good complaint is held bad a different result must follow. A special finding or verdict could not either cure or render the error harmless, because the facts in such pleading, even if they found their way into the special finding or verdict, could not be considered for any purpose. Such facts in such a case would not only be outside of the issues but outside of the scope of the issues. It is clear, therefore, that the overruling of the demurrer to the complaint was a harmless error, if error at all. State, ex rel., v. Vogel, 117 Ind. 188, 19 N.E. 773; Martin v. Cauble, 72 Ind. 67; Douthit v. Douthit, 133 Ind. 26, 32 N.E. 715; Reddick v. Keesling, 129 Ind. 128, 28 N.E. 316.

There were seven paragraphs of answer setting up affirmative matter, besides the general denial. There were nearly as many affirmative paragraphs of reply. Many errors and cross-errors are assigned on rulings on demurrers to the affirmative answers and replies. The answer of general denial authorized every defense to be given in evidence which appellants had, either legal or equitable. In such a case a bad affirmative pleading held good is harmless, because when its facts are found in the special finding or verdict a correct declaration of the law arising on such facts puts the injured party in the same attitude he would have occupied had the pleading been held bad on the demurrer, and a good affirmative pleading held bad on demurrer in such a case is harmless, because its facts were still admissible under the general denial. See authorities last cited. Therefore, rulings as to the sufficiency of answers or replies, even though erroneous, were harmless errors whether committed against appellant or appellee. The next error urged is the refusal of the court below to require the appellee's attorney to produce and prove his authority to prosecute the action under section 970, R. S. 1881. This was such a motion as required a bill of exceptions to present it to this court. There is a paper copied into the transcript in the form of a bill of exceptions purporting to set forth the motion and the action of the court thereon, but it is not signed by the judge. Therefore, there is no question presented to this court as to such refusal of the court to require appellee's attorney to prove his authority to act. There was a demurrer sustained to the cross complaint of appellant, Ross, and the correctness of that ruling is the next question presented. It is insisted that as the same facts could have been given in evidence under the answer of the general denial, sustaining the demurrer to the cross-complaint was harmless, if even it was error.

It is true the facts set up in the cross-complaint, if sufficient to constitute a cause of cross-action, are also sufficient in this case to constitute a defense to the original action, and, so far as that defense is concerned, we have already seen that it was a harmless error to hold the cross-complaint bad; but the very object in pleading the facts in the form of a cross-complaint is to accomplish something more than the mere defeat of the original action. It is to secure affirmative relief, such as quieting the cross-complainant's title, or that which is the same thing, to enjoin the other party from setting up title to the premises through a certain judgment, founded on another judgment. That was asked in this case, and restitution and other relief also were asked in the cross-complaint, neither of which could have been granted on a mere defeat of the ejectment suit.

In an action to recover possession of real estate, as was the case here, a pleading filed by the defendant in which he claims title to the land and asks the title to be quieted, or any other affirmative relief, constitutes a counterclaim. Tabor v. Mackkee, 58 Ind. 290; Wilson v. Carpenter, 62 Ind. 495.

In such a case the matter set up in the counterclaim or cross-complaint, while it may defeat the original action, like a mere defense, its purpose is to go beyond a mere defense and afford to the cross-complainant affirmative relief, which is more than a mere defeat of the original action. Harness v. Harness, 63 Ind. 1; Jones v. Hathaway, 77 Ind. 14; Branham v. Johnson, 62 Ind. 259.

The cross-complaint was, in substance, as follows: "The defendant, George E. Ross, by way of cross-complaint against the plaintiff, Henry J. Banta, says: That on the 8th day of February, 1875, and for more than five years prior thereto one Catherine Peters was the owner of the lots in complaint mentioned, describing them; that for the years 1873 and 1874 taxes were regularly assessed against said lots in the sum of $ 50, which became delinquent, for which the county treasurer sold them to one Joseph Uhl for $ 53.27, to whom a proper certificate was issued by the auditor of said county, and, there having been no redemption at the proper time, a deed was duly executed to him for said property pursuant to said sale; that Uhl remained in possession until July 4, 1881, when he sold and conveyed it to one Margaret Sheehan, who afterwards intermarried with one Andrew J. Ream; that she died in 1889, intestate, leaving surviving her as her only heir at law her husband, Andrew J. Ream, who conveyed said lots to cross-complainant by deed February 27, 1890; that said Uhl had, while he held the tax title aforesaid, and on February 24, 1879, recovered judgment in the superior court of Cass county, Indiana, against said Catherine and Abraham Peters, her husband, quieting his title to said property under said tax deed; that said Margaret Ream took and held possession of said property from July 4, 1881, until her death, and her husband until his conveyance to the cross-complainant; that said Uhl and Ream paid $ 400 taxes on said property under said tax sale, which, with interest and penalties to this date, amount to $ 2,000; that said Banta claims some interest in or title to said property as follows, viz.: That in the year 1873 Abraham Peters and Catherine Peters executed a mortgage upon said property, and also on lot 4 of the same addition, also owned by said Catherine, to one Timothy Crawley, who, on December 23, 1878, recovered judgment of foreclosure thereof in the superior court of said Cass county against said Abraham and Catherine Peters, who were the only parties defendant in said judgment; that said Crawley, on the 27th of January, 1879, assigned said judgment to one Alexander S. Guthrie; that on...