80 Ind. App. 214 | Ind. Ct. App. | 1923
This is an action by appellees against appellant and others growing out of an alleged wrongful eviction from certain real estate. The complaint was answered by a general denial. The cause was submitted to a jury for trial, pending which appellees dismissed their cause of action against all defendants, except appellant and one Wellner, against whom the jury returned a verdict for $600, and on which judgment was rendered. Appellant and said Wellner filed their joint and separate motion for a new trial, which was overruled, and this appeal followed on an assignment of errors by appellant alone, challenging the action of the court in overruling his motion for a new trial, and in refusing to enter ah order nunc pro tune, showing a filing of his bill of exceptions containing the evidence. In view of the conclusion we have reached any error in the latter action of the court was harmless, and hence we will confine our consideration to the alleged error in overruling appellant’s motion for a new trial.
The only recognized reasons for a new trial in actions of this kind properly stated in appellant’s motion therefor are, that the verdict is not sustained by sufficient evidence and is contrary to law, and that the damages assessed are exces
In the instant case the transcript shows that the bill of exceptions containing the' evidence was duly presented to, and approved by, the trial judge, on September 28, 1922, which was within the time given therefor. The transcript also shows the
Having determined that appellant’s bill of exceptions containing the evidence is in the record, we will now consider his contention. that the verdict is not sustained by the evidence and is contrary to law. In making this contention he does not deny the forcible eviction alleged, but seeks to justify the same on the ground that it was done in pursuance of a valid writ of restitution, with no unnecessary force. This writ was issued on a judgment rendered in the court of a justice of the peace of the county in which the real estate in question is located. The record in that cause, which includes the complaint on which the judgment was rendered, was introduced in evidence. Mitten v. Caswell-Runyan Co. (1912), 52 Ind. App. 521, 99 N. E. 47. It discloses, in harmony with appellant’s repeated assertions in his briefs and oral argument, that such action was one in ejectment and for damages based on an alleged breach of a contract of partnership entered into between appellant and appellees for the purpose of engaging in the chicken business on the real estate in question. It is well settled that a justice of the peace in this state has no jurisdiction in actions for the possession of real estate, except in cases where the relation of landlord and tenant exists and the action is against a tenant holding over, and in cases of forcible entry and detainer, and forcible detainer. Burgett v. Bothwell (1882), 86 Ind. 149; Blair v. Porter (1894), 12 Ind. App. 296, 38 N. E. 874, 40 N. E. 81; Bernhamer v. Hoffman (1899), 23 Ind. 34, 54 N. E. 132. This being true, it is obvious that the justice of the peace, rendering the judgment on which the writ of
Appellant also relies on the well recognized general-rule to the effect that, in the absence of a statutory provision, express promise or fraud, an action ex contractu at law, as distinguished from an action in equity, is not maintainable between partners with respect to partnership transactions, unless there has been an accounting or settlement of the partnership affairs. Based on this general rule he contends that since the house from which appellees were evicted was occupied by them pursuant to their said contract of partnership, any damage to them arising from such eviction was proper to be considered in an accounting of their partnership affairs, and hence this action could not be maintained. In making this contention appellant has evidently overlooked the fact that the goods removed from the house in question and held from the possession of appellees for several days, was not partnership property, but appellees’ individual property, with no agreement that it was to be used in the partnership ; and that the evidence tends to show, that one, if not both of the appellees, was deprived of his liberty, and suffered bodily harm at the hands of those who made such eviction, and that both were greatly humiliated by the treatment they received at their hands dur
In order to render appellant liable for the wrongful acts charged, it is not necessary that the evidence should show that he personally laid hands upon either of the appellees or their property. It suffices if he aided and abetted therein, by being present and giving encouragement. 5 C. J. 626; 26 R. C. L. 961; Little v. Tingle (1866), 26 Ind. 168; Hunt v. Di Bacco (1910), 69 W. Va. 449, 71 S. E. 584; Brink v. Purnell (1910), 162 Mich. 147, 127 N. W. 322, Ann. Cas. 1912A 829; Weaver v. Ficke (1917), 174 Ky. Law Rep. 432, 192 S. W. 515; Broyles v. Pioneer Cooperage Co. (1919), (Mo.) 208 S. W. 122. The evidence tends strongly to show that he procured the issuance of the invalid writ of restitution, went to the premises in question with the officer and his deputies, was present when the several wrongful acts alleged occurred, and not only failed to enter any protest, but offered encouragement to the aggressive participants. Therefore, he cannot escape liability on the ground of nonparticipation. After a consideration of all of appellant’s contentions we are clearly of the opinion that there is some evidence to sustain every essential element of appellees’ right of recovery, which is sufficient in that regard on appeal. We are also of the opinion that the verdict is not contrary to law.