49 Ind. App. 682 | Ind. Ct. App. | 1912
This was an action brought by appellee to recover damages from appellant for alleged malicious prosecution. The material averments of the complaint are, that, on June 26, 1906, appellant filed an affidavit before Charles C. Pettijohn, a justice of the peace, pro tern., in and for Center township, Marion county, Indiana, charging that appellee, Thomas McGruder, on June 25, 1905, in said county and State, did violently, with force and arms, and without authority of law, take possession of certain real estate described; that a warrant was issued by said justice of the peace upon said affidavit, and appellee was arrested on said warrant, and gave bond for his appearance; that he was afterward tried by said justice of the peace, and convicted; that such conviction was procured by introducing in evidence a false and fraudulent execution, known to appellant to be false and fraudulent, and by the false testimony of said appellant, to the effect that he was the owner of the real estate described in the affidavit; that appellee appealed the case to the Criminal Court of Marion county, where he was afterwards tried and acquitted; that said pros
The errors relied on for reversal are as follows: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the trial court erred in overruling appellant’s motion for a judgment on the answers to the interrogatories notwithstanding the general verdict; (3) the court erred in overruling appellant’s motion for a new trial.
Appellant in this ease filed an affidavit, and caused the
The judgment first entered in the Shelby Circuit Court was as follows: “It is therefore ordered and adjudged that the plaintiff is entitled to the immediate possession of the whole of the real estate, to wit: Lot No. 49 in Crane’s north addition to the city of Indianapolis.”
On motion of defendant McGruder,' the judgment was afterward modified to read as follows: “That the plaintiff is the owner of the undivided one-fifteenth as tenant in common of the real estate described and set out in said judgment and verdict of the jury heretofore rendered, and as such is entitled to the immediate possession of said real estate, to wit: Lot No. 49 in Crane’s north addition to the city of Indianapolis, Indiana.”
On this judgment two writs were successively issued to the sheriff of Marion county. The first set out the original judgment, and also the judgment as modified, and commanded the sheriff to deliver to plaintiff the possession of the real estate described in the judgment. This writ was returned to the clerk of the Shelby Circuit Court, with an indorsement by the sheriff to the effect that the writ was so indefinite that
The second writ, in reciting the substance of the modified judgment, states that the court adjudged that “plaintiff, ■William E. Henderson, is the owner in fee simple of the
Appellant’s motion for a new trial should have been sustained.
Judgment reversed.