91 Ind. 420 | Ind. | 1883
-A motion to make a complaint more specific is a collateral one and belongs to that class which can only be brought into the record by a bill of exceptions or special order of court. Jarvis v. Banta, 83 Ind. 528.
"Where exceptions are taken to rulings made in forming issues on motions to strike out, to make more specific and the like, exceptions must be entered at the time the rulings are made, and leave must then be taken to reduce the exceptions to writing. There is a marked and important difference between rulings made during the trial, and those made upon the pleadings prior to issue joined. The statute impera-. tively requires that exceptions to rulings of the character last mentioned shall be reduced to writing at the time they are made, or that leave to afterwards reduce to writing shall be
The question upon the motion to make the complaint more specific is not properly reserved.
The complaint alleges that appellee had leased a tract of land of one "Volney Wilson, who had put him in possession; that before that time the appellant had leased part of it for the purpose of rotting flax straw upon it ; that his right fully expired on the 1st day of March, 1881, and that he thereafter wrongfully and unlawfully kept the appellee out of possession of said part until June 1st, 1881, although he well knew that appellee had leased it and was entitled to possession. It also alleges that appellant, after March 1st, 1884, so used said part as to render it valueless to appellee during the spring, summer and fall of said year, to his damage, etc. The complaint states a cause of action. The right of the appellee to possession became vested on the 1st day of March, 1881, and the appellant
The appellant has no right to make the point that Wilson’s lease to appellee was not in "writing. Parties alone can avail themselves of the benefit of the statute of frauds. Dixon v. Duke, 85 Ind. 434.
The complaint shows that the appellee had a right to the •possession, and was in part possession, and this vested in him :a cause of action against one who deprived him of that right, and Wilson was not a necessary party defendant. The cause ■of action for exclusion from possession was in appellee alone. Wilson having leased the land could not have maintained an action for possession, and surely could not have joined with appellee, who had the sole and exclusive right of possession; Wilson might have sued for damage to the inheritance, but not for possession, nor for injury to the mere possessory right.
The measure of damages can not be determined upon a demurrer to a complaint; for, if the complaint shows a right to some damages, although not all claimed, it will overthrow a demurrer. Bayless v. Glenn, 72 Ind. 5.
The matters stated in the second paragraph of the answer were admissible under the paragraph which pleaded the general denial, and it was properly rejected.
It was proper for the court to permit appellee to prove the contract between Wilson and appellee, as well as between Wilson and the appellant, for this was necessary in order to establish title in the appellee and lack of it in the appellant.
As both parties claimed through a common source, Yolney Wilson, the appellee, made a prima faeie case at least when Re showed the respective titles and the source from which they were derived. Where both parties claim through the same person, it is sufficient to prove title in that person without showing how he derived it. Wilson v. Peelle, 78 Ind. 384.
Judgment affirmed.