No. 26,564. | Ind. | Oct 21, 1936
Appellee brought this action against appellant John Laiskomis to recover possession of certain real estate in Newton county, purchased by appellee at sheriff's sale upon foreclosure of a mortgage.
The first error assigned involves the overruling of appellant John Laiskomis' motion to strike out certain parts of the complaint, which appellant says are immaterial and 1, 2. irrelevant. It is well settled that the overruling of such a motion is not reversible error if the complaint can be said to have contained pertinent facts to support the judgment, and the irrelevant matter does not supply the basis for the judgment. Harter, Admx. et al. v. Songer (1894),
Error is assigned upon the overruling of the demurrer to the first paragraph of complaint. The causes of demurrer discussed in the brief concern themselves with that part of the 3. complaint which deals with a lease and prays for reformation *579 thereof. This is the matter which appellant sought to have stricken out as immaterial and irrelevant. Without it the complaint states a cause of action. There was no judgment re-forming the lease, and therefore, even if there was merit in the contention, appellant was not prejudiced.
By cross-complaint, appellant John Laiskomis alleged that the judgment of foreclosure under which the property was sold to appellee was not read in open court before it was signed by 4. the judge; that therefore the sale was invalid. A demurrer to the cross-complaint was sustained. This was not error. In the recent case of Brant et al. v. Lincoln Nat. Life Ins.Co. (1935),
Under the assignment of error upon the overruling of the motion for a new trial, the sufficiency of the evidence and the ruling of the court upon the admission of certain evidence are questioned. It is admitted that certain of this evidence was harmless if erroneously admitted. All of the contentions respecting error in the overruling of the motion for a new trial are based upon the assumption that appellee's first paragraph of complaint was predicated upon the right of possession upon the expiration of the relationship of landlord and tenant. These allegations were merely surplusage. The first paragraph states a cause of action for possession under a sheriff's deed. There was sufficient evidence to sustain the finding for appellee upon this paragraph.
There was no error in overruling the petition of Anna *580 Laiskomis to intervene, since no judgment was sought or taken against her. She was not a necessary party, and under 5, 6. such circumstances, the question of intervention is within the sound discretion of the trial court, and unless an abuse of discretion is shown there is no error in denying the right to intervene. Since there was no judgment against the petitioner, she is not harmed.
The errors assigned are technical. Under the undisputed evidence, appellee was entitled to possession of the land under its deed. It is not even suggested that at another trial the evidence might be different. A new trial would only delay the inevitable judgment for appellee.
Judgment affirmed.