Smith v. Largura
| Decision Date | 10 March 1922 |
| Docket Number | 11,129 |
| Citation | 134 N.E. 493,79 Ind.App. 546 |
| Parties | SMITH ET AL. v. LARGURA ET AL |
| Court | Indiana Appellate Court |
Rehearing denied June 21, 1922.
Transfer denied April 17, 1923.
From Lake Superior Court; Charles E. Greenwald, Judge.
Action by David Smith and others against John Largura and others. From a judgment for defendants, the plaintiffs appeal.
Reversed.
Gavit Hall & Smith and Harry P. Sharavsky, for appellants.
Bomberger, Peters & Morthland and Elmer E. Stevenson, for appellees.
OPINION
In 1919, appellee John Largura and two brothers erected in the city of Gary a hotel and business block on lands owned by themselves, and on June 12, of that year leased the said building for a term of ten years to the appellants herein, who at once took possession of said premises and began operating a hotel therein. The business rooms on the first floor of said building were leased to subtenants. Subsequent to the execution of said lease appellee John Largura acquired the interest of his brothers in said property and became the sole owner thereof.
In the early part of 1919, said lease was assigned to one Milloy, and a few days later was assigned by said Milloy to one John Metz, and in March, 1919, appellee John Largura began an action in the Lake Superior Court against said John Metz to recover possession of said premises. After the suit had been brought Metz assigned said lease to appellant Mary Smith. The venue of this cause was changed to the Porter Superior Court, in which court the said defendant John Metz, after he had assigned said lease, filed his answer disclaiming any present interest in said property, and a judgment was rendered in said court October 20, 1920, awarding plaintiff therein possession of said property, and shortly thereafter a writ of possession was duly issued and placed in the hands of the sheriff of Lake county to execute.
After this writ came to the hands of the said sheriff an action was begun by the appellants herein against said sheriff and said John Largura, in which they asked for an injunction against said defendants, restraining them and each of them from executing said writ, and from dispossessing the appellants from said property. Answers were duly filed by the said defendants and the issues being closed the cause was submitted to the court for trial, and on January 11, 1921, the Lake Circuit Court, in which said cause was heard, rendered its decree, denying said plaintiffs any relief.
Thereafter this suit was begun in the Porter Superior Court, the court which rendered the original judgment in favor of appellee Largura for possession of said premises, and by change of venue was sent to Lake Superior Court, room 3.
The complaint is quite lengthy, and, as the same was not challenged by demurrer, its averments need not be herein set out. By it the appellants sought to have the judgment, hereinbefore referred to as having been taken against the said John Metz, opened up and set aside as against them, on account of their alleged excusable neglect. They also asked for a restraining order, which was granted.
The appellees, Largura, and Olds, sheriff, each appeared and filed separate answers in general denial. They also filed joint and separate answers, setting up and pleading the said judgment and decree of the Lake Circuit Court, as a former adjudication of the matter in issue in this suit. To these special answers the appellants filed a reply wherein they admitted the facts concerning the said judgment and decree so pleaded, but they alleged other facts which they considered to be sufficient to avoid said answers. There were no demurrers filed to either said answers, or to said reply.
The cause was then submitted to the court for trial and the evidence in part heard. Before the evidence was concluded the appellees filed their written motion asking the court to render and enter judgment in their favor on the...
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