Shroyer v. Campbell

• Decision Date: 30 April 1903
• Citation: 67 N.E. 193,31 Ind.App. 83
• Parties: SHROYER v. CAMPBELL et al.
• Court: Indiana Appellate Court

31 Ind.App. 83

67 N.E. 193

SHROYER

v.CAMPBELL et al.

Appellate Court of Indiana, Division No. 1.

April 30, 1903.

Appeal from Circuit Court, Henry County; Wm. O. Barnard, Judge.

Suit by Thomas L. Campbell and others against James K. Shroyer. From a decree for complainants, defendant appeals. Affirmed.Frank E. Beach and Wm. A. Brown, for appellant. Forkner & Forkner, for appellees.

ROBINSON, J.

Suit by appellees to enjoin and abate a nuisance. When the case was submitted to the court for trial, and before the beginning of the evidence, appellant filed a written request for a special finding of the facts. The court made a general finding, upon which a decree was rendered. It is the duty of the court to find the facts specially upon a proper request, but this right to a special finding might be waived by the party after the request is made. And it will be presumed to have been waived where, without any objection made or exception taken, the court makes a general finding and renders thereon a decree. After the evidence was heard, the court may have inadvertently made the general finding, and the action of the trial court cannot be reviewed without first having given the court an opportunity to correct the error. See Tague v. Owens, 11 Ind. App. 200, 38 N. E. 541.

At the proper time appellant demanded that the issues of fact be tried by a jury, which was refused. The Code provides that “issues of law and issues of fact in causes that, prior to the 18th day of June, 1852, were of exclusive equitable jurisdiction, shall be tried by the court.” Burns' Rev. St. 1901, § 412. As a complaint for injunction invokes the equity powers of the court, a trial by jury cannot be demanded. Such an action belongs exclusively to the equitable jurisdiction of courts; and while the court may now, as it could prior to the adoption of the Code of 1852, in cases triable by the court, “in its discretion, for its information, cause any question of fact to be tried by a jury,” yet a party cannot demand as of right a trial by jury in such cases. Helm v. First Nat. Bank, 91 Ind. 44;Pence v. Garrison, 93 Ind. 345;Evans v. Nealis, 87 Ind. 262. The building occupied by the parties to this suit is a three-story brick building. On the first floor are two storerooms separated by a stairway leading to the second story, in which is a hallway about four feet wide. Appellees occupy the first and second stories of the east part of the building as a dry goods store and millinery store, and appellant lives in three rooms in the second story of the west part. In the rear of the building is an open alleyway appurtenant thereto, upon which the building abutted, and into this way opened the rear exits, doors, and windows. It is charged that appellant has constructed over this way a room with a stairway leading down in front of the door that leads into this way from the building, completely closing up the door, and cutting off all light and ventilation into the room, and blockading the free use of the way; that appellant cooked in the rooms he occupied, and that the odor, steam, and vapor escaped into and settled on appellees' goods, rendering them unsalable; that he constantly throws into the alley certain described refuse matter, which putrifies, and gives off offensive and unhealthful odors, which escape into the store, preventing the use of the windows for ventilation without danger to the health of appellees and their employés. Appellees are tenants under a lease of the rooms, and the acts complained of are a wrongful interference with the use of the rooms, and a special injury to the tenant. As the amount of damages awarded was nominal, there was no reversible error in permitting evidence to be introduced as to the rental value of the rooms occupied by appellees if the premises were free from the annoyances about which complaint was made. Nor is it made to appear that appellant was harmed by evidence showing the annual volume of business done by appellees.

It was not harmful error to permit one of the appellees to testify that these odors were the subject of remarks by their customers. No attempt was made to prove any statement made by any one. Such evidence was competent as showing the nature and extent of the nuisance complained of, and the effect upon appellees' business.

The statute, section 290, Burns' Rev. St. 1901, provides that “whatever is injurious to...