Trout v. Brown
| Citation | 123 N.E.2d 647,125 Ind.App. 381 |
| Decision Date | 24 January 1955 |
| Docket Number | No. 18640,18640 |
| Parties | Gordon TROUT, Ruth Trout, Appellants, v. Harold BROWN, Maude K. Brown, Appellees. |
| Court | Court of Appeals of Indiana |
John H. Baldwin, Indianapolis, for appellants.
Addison M. Dowling, Indianapolis, for appellee Harold Brown.
Appellees brought this action for possession of real estate against the appellants. The issues were formed by appellees' amended complaint to which appellants filed amended answers together with their third amended counterclaim in which they allege tender of amount of rent due; refusal thereof in accordance with O.P.A. regulations; that the tenancy was unlawfully terminated; that as a result thereof, appellants were forced to find other living quarters; that they incurred expense in moving their household goods, had to employ counsel to defend appellants' law-suit; that they suffered shame and humiliation and sought damages in the sum of $3,000. A demurrer was filed to the third amended counterclaim alleging that the court had no jurisdiction and that if appellants had any right of action they could not bring the same until the court had adjudicated the rights of the parties to the original suit.
The demurrer was sustained and appellants refused to plead over. Appellees dismissed the action and paid the costs. Judgment accordingly was entered against the appellants on the third amended counterclaim from which this appeal is taken.
Appellants' assignment of errors are, first, that the court error in sustaining the demurrer of appellees to the third amended counterclaim of answer of the appellants, Gordon Trout and Ruth Trout; second, that the court erred in finding for the appellees and against the appellants, Gordon Trout and Ruth Trout, on appellants' third amended counterclaim; third, that the court erred in returning judgment that the appellants, Gordon Trout and Ruth Trout, recover nothing by way of the third amended counterclaim.
Assignment of errors two and three fail to present any question. It is not shown that they are based upon any ruling of the trial court. The appellants have elected only to bring to this court a partial transcript of the record below.
Appellants contend that the Marion County Municipal Court Room 2 had jurisdiction of the subject matter of the third amended counterclaim by reason of § 4-2502, Burns' 1946 Repl., Vol. II; that the matters therein contained arise out of and are connected with the main action which was for possession of real estate. The section of our statute that deals with the filing of counterclaims is § 2-1018, Burns' 1946 Repl.
Appellees' amended complaint was solely for possession of real estate and damages for unlawful detention thereof upon which no judgment had been rendered either for or against appellants at the time of filing the third amended counterclaim. The theory of the counterclaim as viewed by this court was that appellants had been constructively evicted. It is well settled that a counterclaimant's cause of action to be germane to the subject matter must exist at the time of the filing of the original action. It is not sufficient for the claimants to merely have a counterclaim at the time of filing thereof. Lowe's Revision of Works' Indiana Practice, Vol. 2, p. 11, § 17.10; Newkirk v. Neild, 1862, 19 Ind. 194; Durbin v. Northwestern Scraper Co., 1905, 36 Ind.App. 123, 73 N.E. 297; Flanagan, Wiltrout & Hamilton, Indiana Pleading & Practice, Ch. 38, p. 230, § 177.
Courts have often stated that no fixed rules can be established by which it can be determined whether the particular matter pleaded is so nearly connected with the cause of action as to fall within the meaning of the statutes. The question whether the matter set up as a counterclaim is or is not a matter 'arising out of or connected with' the plaintiff's cause of action must necessarily continue to be uncertain in many cases. This court is well aware of the rule that it is the purpose of the code to do full and complete justice between the parties in one action if possible without harm. It is the object of the statute to enable parties by a single litigation to settle whatever claim either may have directly dependent upon such a question involved and having such a factual relation when the law applicable thereto is applied that it can be truthfully said that they are connected with or grew out of the same transaction. Flanagan, Wiltrout & Hamilton, Indiana Pleading & Practice, supra.
Appellants' counterclaim that they have been damaged was brought after appellees filed suit for possession for nonpayment of rent. The first wrong alleged to have been committed was that on the part of the appellants in failure to pay rent when due. In the case of Muir v. Robinson, 1933, 205 Ind. 293, 186 N.E. 289, 292, the factual situation of which is different to that now under consideration for in that case it involved a contract for the exchange of real estate. Notwithstanding, the court announced a...
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Kapson v. Kubath
...involved distinguish them from the present case and that they do not support defendant's contention. The holding in Trout v. Brown, 125 Ind.App. 381, 123 N.E.2d 647, is not applicable to the facts and circumstances involved in the present action. In 1 C.J.S. Actions § 13, pp. 1000, 1001, it......
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Nelson v. Butcher
...are no allegations in the counterclaim of other acts that would have constituted a breach of the leasehold agreement, and in view of the Trout decision, supra, we hold that the appellees did not have a valid counterclaim since the issue of wrongful eviction was never before the trial court.......
- Haley v. Williams, 18537
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Haas v. Rathburn, 19803
...therefore the verdict on the counterclaim was erroneous. In support of their contention appellants rely upon Trout et al. v. Brown et al. (1954), 125 Ind.App. 381, 123 N.E.2d 647. In that case the plaintiff's complaint was solely for possession of the real estate and damages for unlawful de......