Whipple v. Shewalter

Citation91 Ind. 114
Decision Date19 October 1883
Docket Number10,732
PartiesWhipple v. Shewalter
CourtSupreme Court of Indiana

From the Jay Circuit Court.

The judgment is affirmed, at the appellant's costs.

D. T Taylor and J. M. Smith, for appellant.

W. C Ladd, W. H. Williamson, W. A. Thompson and J. W. Thompson for appellee.

OPINION

Black C.

The appellee sued the appellant to recover possession of real estate unlawfully held over by the latter after determination of his tenancy by ten days' notice to quit for non-payment of rent, and to recover damages for the unlawful detention of the premises and unpaid rent accrued before the determination of the tenancy.

A jury rendered a verdict for the appellee, assessing his damages at $ 192.41. Motions made by the appellant for a new trial, in arrest of judgment, and to modify the judgment which was rendered on the verdict, were overruled.

In this court the appellant has assigned as errors:

"1st. The appellee's amended complaint does not state facts sufficient to constitute a cause of action.

"2d. The court erred in overruling the motion for a new trial.

"3d. The court erred in overruling the motion in arrest of judgment.

"4th. The court erred in overruling the motion to modify the judgment.

"5th. The court erred in rendering judgment in favor of appellee for $ 192.41.

"6th. The court erred in rendering judgment for appellee for possession of the premises."

The lease under which the appellant received and held possession of the real estate was filed as an exhibit to the complaint, and the only objection to the complaint made in argument, under the first and third specifications in the assignment of errors, is, that the property (very accurately described in the complaint) was not sufficiently described in the lease.

The complaint, so far as it was sought therein to recover possession and damages for unlawful detention, was not founded on the lease, within the meaning of section 362, R. S. 1881, and it was not necessary, in order to make the complaint show a cause of action, that the lease, or a copy thereof, should be filed with the pleading; and, under many decisions of this court, it cannot be examined in determining the question of the sufficiency of the complaint, as a complaint for possession and damages for detention. If any cause of action was shown by the allegations of the complaint, without the aid of the exhibit, the objection, based upon the contents of the exhibit, can not avail.

The appellee sought also the recovery of unpaid rent accrued up to the time when the possession became unlawful. The premises were described in the lease as the appellee's "brick store-room." The appellant took possession and held the property as the tenant of the appellee, under the lease. This was alleged in the complaint. The tenant could not escape payment, according to the terms of the lease, of rent for the time he occupied thereunder, upon the ground that the premises mentioned in the contract were not described therein as to their location. We need not decide whether the description in this lease would be sufficient for the purpose of every action that may be based upon a lease. Neither need we decide whether, without the filing of the lease, or a copy thereof, the complaint would have been good as a complaint for use and occupation. The lease was a sufficient exhibit to the complaint regarded as a complaint founded thereon, for the recovery of rent.

The complaint was not objectionable on the ground suggested by counsel.

It is claimed that the admission of the lease in evidence over appellant's objection, which was assigned as a cause for a new trial, was error, because of the alleged insufficiency of the description of the premises. It was admissible to show the origin of the tenancy terminated by notice to quit for failure to pay rent, and also to prove the contract of the parties as to the rent, both to show the amount of rent accrued under the lease and as evidence of the amount of damages for the unlawful detention of the premises.

It is urged that the court erred in admitting in evidence, over appellant's objection, the written notice to quit for non-payment of rent; the objection suggested here being that the description of the premises in the notice, which was a full and accurate description, was not in the terms of the description in the lease, or in all respects in the terms of the description in the complaint. The notice described certain premises held by the person to whom it was given, as the tenant of the person who gave it, with...

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23 cases
  • Moore v. Republic Moving and Storage, Inc., 49A02-8705-CV-197
    • United States
    • Indiana Appellate Court
    • January 25, 1990
    ...Law Dictionary 754 (1968)).5 As a judgment creditor, Braeburn Apartments could exercise its rights under IC 32-7-3-6. See Whipple v. Shewalter (1883), 91 Ind. 114; Strasser v. Powell (1961), 131 Ind.App. 508, 172 N.E.2d 439. In the absence of any evidence to the contrary, we will not assume......
  • Diggs v. Way
    • United States
    • Indiana Appellate Court
    • October 14, 1898
    ... ... omitted in the pleading. Knight v. Flatrock, ... etc., Co., 45 Ind. 134; Wilson v ... Vance, 55 Ind. 584; Whipple v ... Shewalter, 91 Ind. 114; Conwell v ... Conwell, 100 Ind. 437; Huseman v ... Sims, 104 Ind. 317, 4 N.E. 42. However necessary a ... ...
  • Karas v. Skouras
    • United States
    • Indiana Appellate Court
    • December 7, 1922
    ...there can be no recovery for rent due, but this contention is not in harmony with the authorities, and cannot be sustained. Whipple v. Shewalter, 91 Ind. 114;Campbell v. Nixon, 2 Ind. App. 463, 28 N. E. 107;Spahr v. Nicklaus, 51 Ind. 221. [7] The court did not err in its conclusions of law ......
  • Jester v. Gustin
    • United States
    • Indiana Supreme Court
    • April 3, 1902
    ...instruments may be evidence of title, but they are not the foundation of the action or defense. Black v. Richards, 95 Ind. 184;Whipple v. Shewalter, 91 Ind. 114;Boyd v. Olvey, 82 Ind. 294;Ragsdale v. Parrish, 74 Ind. 191;Schori v. Stephens, 62 Ind. 441, 449;Noble v. McGinnis, 55 Ind. 528, 5......
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