Simmons v. Lindley
| Citation | 9 N.E. 360,108 Ind. 297 |
| Decision Date | 22 November 1886 |
| Docket Number | 12,535 |
| Parties | Simmons v. Lindley et al |
| Court | Supreme Court of Indiana |
From the Hancock Circuit Court.
The judgment is reversed with costs, and the cause is remanded with instructions to sustain the demurrer to the complaint and for further proceedings not inconsistent with this opinion.
W. R Hough, for appellant.
W. S Denton, E. Marsh and W. W. Cook, for appellees.
The first error complained of here by appellant, the defendant below, is the overruling of his demurrer to appellees' complaint herein.
This suit was commenced in the court below on the 30th day of May, 1884, by one Martha A. Woods as sole plaintiff, against the appellant as sole defendant. In her complaint then filed, Martha A. Woods alleged that she was the owner in fee simple of the undivided one-third of certain parcels of real estate, particularly described, in Hancock county; and that appellant wrongfully, and without any lawful right, detained and kept possession thereof from her, and denied her title thereto. Wherefore she demanded judgment for the possession of said property, and for all other proper relief.
Afterwards, on the 30th day of December, 1884, and before any steps had been taken in the cause, the death of Martha A. Woods was suggested to the court. Thereafter, on the 9th day of June, 1885, the appellees appeared as plaintiffs and filed what is called their supplemental complaint herein, and alleged therein that, since the commencement of this suit, the original plaintiff, Martha A. Woods, had died testate, leaving as her surviving children and devisees the appellee, Olive F., wife of William F. Lindley, Sarah A., wife of Clarence A. Burk, and John C. Woods, to whom she devised all said parcels of real estate; that they were the owners in fee simple of the real estate, described in the original complaint, which they also described particularly in their supplemental complaint; that the appellant unlawfully and without right detained and kept the possession of said real estate from the appellees, and wholly denied their title thereto; and the appellees averred that they were entitled to the immediate possession of said real estate. Wherefore they demanded judgment for the possession of said real estate, and for all other proper relief.
After this supplemental complaint was filed, appellant demurred to the original complaint of Martha A. Woods. This was the only demurrer filed by appellant, so far as the record shows, and it was overruled by the court. It must be this ruling which appellant assigned here as his first error, because the record fails to show either that he demurred to the complaint of the appellees, or that such a demurrer was overruled by the court.
In argument, appellant's counsel vigorously insists that the original complaint of Martha A. Woods was bad, and that it was error to overrule his demurrer thereto. That much must be conceded, we think. The original complaint sought to recover the possession of real estate, and it contained no averment of the fact, if it were the fact, that Martha A. Woods, the plaintiff therein, was entitled to the possession of the real estate, at the time she commenced her suit. For the want of such an averment, it is clear that the original complaint herein did not state facts sufficient to constitute a cause of action, and that the demurrer thereto ought to have been sustained. Section 1054, R. S. 1881; McCarnan v. Cochran, 57 Ind. 166; Vance v. Schroyer, 77 Ind. 501; Second Nat'l Bank, etc., v. Corey, 94 Ind. 457.
But can this error of the court, for such it was, be made available by the appellant for the reversal of the judgment below? As we have seen, after the death of the original plaintiff Martha A. Woods, the appellees, as her heirs and devisees, appeared and filed what they called "a supplemental...
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