Steve v. Colosimo, 26735.

• Decision Date: 29 April 1937
• Docket Number: No. 26735.,26735.
• Citation: 211 Ind. 673,7 N.E.2d 983
• Parties: STEVE v. COLOSIMO.
• Court: Indiana Supreme Court

211 Ind. 673

7 N.E.2d 983

STEVE

v.COLOSIMO.

No. 26735.

Supreme Court of Indiana.

April 29, 1937.

Action by Leonora Colosimo against Spiro Steve, identical with and named as Spiro Staoff, etc. From a judgment for plaintiff, defendant appeals.

Affirmed.Appeal from Superior Court, Lake County; Homer Sackett, judge.

Joseph H. Conroy, of Hammond, and Frank H. Sparber, of Gary, for appellant.

Howard Englander and Oscar B. Thiel, both of Gary, for appellee.

TREMAIN, Chief Justice.

This is an action by the appellee against the appellant to recover possession of certain real estate and damages for its unlawful detention. There was a trial by the court in which judgment was rendered in favor of the appellee for the possession of the real estate and $400 in demages.

At the time of filing the complaint the appellee filed an affidavit, as provided in chapter 254 of the 1927 Session of the General Assembly of the state of Indiana, being sections 3-1304, 3-1305, and 3-1306, Burns' Ind.St.1933, sections 944, 945 and 946, Baldwin's Ind.St.1934. That statute provides that in all actions in ejectment or for the recovery of the possession of real estate, the plaintiff may file with his complaint in the clerk's office an affidavit stating that he is entitled to the possession of the property described in the complaint; that the defendant unlawfully retains possession thereof, and the estimated value of the property together with the rental value. Upon the filing of the affidavit, the clerk shall issue an order to the sheriff to seize possession of the property described, and to forthwith serve a copy of the order on the defendant. The defendant may retain possession if, within five days after the receipt of the notice, he shall execute a written undertaking payable to the plaintiff, with surety to the approval of the sheriff, to the effect that the defendant will safely keep the property and will deliver the same to the plaintiff if judgment shall be rendered to that effect, and will pay to the plaintiff all sums of money that may be recovered in the action. But if such undertaking is not given within that time, then the sheriff shall forthwith seize possession of the property and deliver it to the plaintiff by removing the defendant therefrom, provided the plaintiff, within five days after the expiration of the time allowed the defendant to furnish such written undertaking, shall execute an undertaking payable to the defendant, with surety to be approved by the sheriff, to the effect that the plaintiff will prosecute his action with effect, and will pay the defendant all damages which he may recover in an action against the plaintiff.

The defendant (appellant) filed his written undertaking within the five days allowed by statute and retained possession of the property.

The appellant does not question the correctness of the final judgment rendered by the court, but relies solely upon an alleged error committed by the court in denying appellant's motion to quash the order directed to the sheriff to seize possession of the property. The appellant alleges in the motion that the affidavit filed by the plaintiffwas insufficient for the reason that it omitted the word ‘unlawfully’-that is, the appellee did not allege appellant unlawfully retained possession. Also, the appellant alleges that the act is unconstitutional and void for the reason that it conferred judicial power upon the clerk, an administrative officer, and violated the Fourteenth Amendment of the Constitution of the United States, and section 12 of article 1 of the State Constitution.

While the appellant executed the undertaking provided by statute in order to permit...