54 Ind. 392 | Ind. | 1876
This was an action by appellee, as plaintiff, against appellant, as defendant, in the court below, for the recovery of rent alleged to be due and unpaid. Appellee’s complaint was in two paragraphs. In the first paragraph, it was simply alleged that appellant was indebted to appellee in the sum of two hundred and seventy-five dollars for rent of store on Main street, between Water and First streets, in the city of Evansville, Vanderburgh county, Indiana, from March 1st to August 1st, 1873, no part of which had been paid.
Appellant demurred, separately, to each paragraph of the complaint, for the want of sufficient facts therein to constitute a cause of action, which demurrers were severally overruled by the court below, and to these decisions appellant excepted. Appellant then answered in two paragraphs, as follows:
1. A general denial; and,
And appellee demurred to the second paragraph of appellant’s answer, for the want of sufficient facts in said paragraph to constitute a defence to this action, which demurrer was overruled by the court below, to which decision appellee excepted. And appellee then replied, by a general denial, to said second paragraph of the answer. And the action, being at issue, was tried by a jury, who returned a verdict for the appellee and assessed his damages at two hundred and sixty-eight dollars and thirty-four cents.
Upon written causes filed, appellant moved the court below for a new trial of the action, which motion was overruled, and to this decision appellant excepted, and judgment was rendered upon the verdict.
In this court, the appellant has assigned eight alleged errors, the first five of which are not available to the appellant in their present form, in this court, for any pur
6. The court below overruled appellant’s demurrers to the complaint;
7. The court below refused to grant a new trial, and rendered judgment on the erroneous verdict of the jury ; and,
8. There are other manifest errors in the record.
Appellant’s learned attorneys have wholly failed to point out any objection to or defect in either paragraph of the complaint. They say that there was no prayer for any relief at the end of the first paragraph of the complaint. But this was not necessary. "Where the same cause of action is stated, in different forms, in two or more paragraphs of a complaint, the prayer for relief, as to all the paragraphs, may well come, and properly does come, at the end of the last paragraph. There was no error, in the overruling of appellant’s demurrers to appellee’s complaint.
The eighth alleged error presents no question for our consideration. It is entirely too vague and indefinite. If the appellant, in any case, can not discover and point out to this court, in plain and intelligible language, the alleged errors of the court below, of which he complains, he need not flatter or delude himself with the idea that this court, or any of its judges, will devote a moment’s time to an idle search for such alleged errors. It will not be done.
The only remaining alleged error is the seventh; and by this error we understand the appellant to mean, although it is not so written, that the court below erred in overruling his motion for a new trial. In his motion, appellant assigned eleven different causes for such new trial, as follows:
2. The verdict was contrary to law.
3. Error of law, occurring at the trial and excepted to, in excluding offered evidence, setting it out at length.
The next seven causes were alleged errors of law, occurring at the trial and excepted to, in refusing to give, and in giving, certain specified instructions to the jury.
11. Because the damages were excessive.
The instructions which the court below refused to give the jury, and the instructions which the court below did give the jury, are none of them in the record. So that there is no question before us, in relation to the instructions, either those given to the jury, or those which the court below refused to give. Really, the only question before us, which appellant’s counsel seem to rely upon for a reversal of the judgment of the court below, is ,whether the court erred or not, in the exclusion of certain evidence offered by appellant. Appellant had entered into the possession of the premises, described in the complaint, under a written lease for the term of one year, at a specified annual rent, payable in specified monthly instalments. After the expiration of the written lease, on September 1st, 1872, appellant held over, and had remained in possession of the demised premises, until March 1st, 1873, during which time he had made the same monthly payments of rent, as had been specified in the written lease. The theory of appellee’s case was, that by holding over after the expiration of the year specified in the written lease, without any new contract or agreement, appellant had become the tenant of the demised premises for another year, or until September 1st, 1873, for the same annual rent, and payable in the same monthly instalments, as specified in said written lease. And so, upon the trial in the court below, the appellee, to make out his case, had put in evidence the written lease, and had shown that appellant had continued in possession of the demised premises after the expiration of said lease, paying the
To this offered evidence, the appellee objected, and the court below sustained the objection and excluded from the jury the evidence so offered, and to this decision appellant excepted.
It will be seen from this offered evidence, that appellant based his defence to appellee’s action upon the alleged fact, that after the expiration of the written lease, he became the tenant from month to month of the demised premises, and so continued until he left them, under a parol contract entered into between Mm and said Alvah Johnson, at the same time they executed the said written lease.
The record does not disclose what appellee’s objections were to the admission of the offered evidence; but it is very clear to our minds, that the alleged fact, which appellant sought to prove by the offered evidence, was, in this case, wholly immaterial. It abundantly appears throughout the entire record of this -case, that the only estate, which Alvah Johnson, the lessor of the appellant,
It was proved by appellee, and not denied by appellant, that the latter had notice of the sale of the demised premises to appellee. Appellant was bound to know that his lease under Johnson was determined, by the sale and conveyance of the demised premises to appellee; and if he wished any other tenancy under appellee than the tenancy from year to year, which the law itself created where the premises were occupied merely by the consent of the landlord, he should at once have sought for such other tenancy, by contract with the appellee. 2 R. S. 1876, p. 338, sec. 2. By the express terms of this section two, just cited, appellant’s tenancy under appellee, of the demised premises, was, in our opinion, a tenancy from year to year.
It is insisted by appellant that the appellee, by his own acts, put an end to the tenancy, within a short time after the appellant left the demised premises. Upon this point, the evidence was conflicting; but it was for the jury to
One other cause for a new trial was assigned in appellant’s motion, and that was that the damages assessed by the jury were excessive. This question, appellant’s counsel have not noticed in their argument, and we might well regard it as waived. But we may say that the jury, having found for appellee, could not have assessed his damages, under the evidence, for any less. sum than they did.
In our opinion, the court below committed no error in overruling appellant’s motion for a new trial.
The judgment of the court below is affirmed, at the costs of the appellant.