46 Ind. App. 335 | Ind. Ct. App. | 1910
Lead Opinion
The complaint in this case alleges that the plaintiff was the owner of certain real estate in Dubois county, Indiana; that she purchased said land from Carl J. Grabber, in April, 1908; that he delivered over to her the possession thereof, subject to defendant’s right as a tenant from year to year; that said defendant has been and is now occupying said land as a tenant from year to year; that his tenancy began on March 1, 1908, and will expire on March 1, 1909; that on June 30, 1908, plaintiff served a written notice on defendant to deliver possession of said land at the expiration of the current year of said tenancy, and also in said notice informed defendant that she had purchased said land, and notified him that she intended to plow the vacant places in said land during the fall of 1908, and sow it in wheat; that in violation of his rights under said lease, and in violation of said written notice, defendant, on August 13, 1908, began to plow a part of said land, preparatory to sowing wheat; that he has already, up .to August 14, 1908, plowed about one acre of said land, and if not prevented by an .order of this court he will continue to usurp the rights of plaintiff in her said land; that defendant, wrongfully and without leave, license or consent of plaintiff, entered upon said land, with teams and plows, and on August 13 and 14, 1908, plowed one acre of said ground, preparatory to putting in wheat, and thus continuing his tenancy beyond March, 1909; that defendant is threatening to, and will if not enjoined and restrained by this court, continue to plow plaintiff’s said land, and sow wheat thereon, thereby continuing his tenancy and lease on said land beyond the term of its expiration, to wit, March 1, 1909, to the irreparable injury of this plain
A demurrer for want of facts was overruled to the complaint, and appellant filed an affidavit and motion for change of judge and an affidavit and motion for change of venue from the county, each of which motions was overruled.
The action of the court in overruling said motions was made the basis for a verified plea to the jurisdiction of the court. The court sustained appellee’s demurrer to said plea in abatement. Appellant, by his second paragraph of answer, attempted to set up former adjudication of the cause. To such answer the court sustained a demurrer for want of facts. Thereupon the' court ordered appellant to plead further, and upon his refusal he was called and defaulted.
The errors discussed on behalf of appellant question the sufficiency of the complaint, the sustaining of a demurrer to the second paragraph of answer, and the action of the court in overruling appellant’s motion for a new trial.
Judgment affirmed.
Concurrence Opinion
The assignment that the court erred in refusing the change of venue is logically correct. It would seem that no new trial could be granted in a case in which there has been no trial. It is also logically correct to make such assignment where there has been a trial, for the reason that such motion and the refusal thereof can have no more to do with the trial than the ruling on a demurrer or any other action which has nothing to do with it. Citizens St. R. Co. v. Shepherd (1902), 29 Ind. App. 412, 424. If logic governs in making assignments of error, the cases cited on page 424, supra, should be overruled.