58 Ind. App. 597 | Ind. Ct. App. | 1915
On December 5, 1911, the appellees filed in the Starke Circuit Court, a complaint in one paragraph, in which they alleged in substance and in general terms that they were the owners in fee simple of certain real estate therein described and that appellant then held and for a year past had unlawfully held possession of such real estate, and though frequently requested to vacate the premises had refused to do so. Possession and damages for the retention of the property were asked. This complaint was not questioned by demurrer and the only answer filed was a general denial. On appellant’s motion the cause was venued to the Pulaski Circuit Court where a trial by the court resulted in a finding and judgment in favor of appellees.
On September 9, 1912, appellant was granted a new trial as a matter of right and on the same day appellees filed a second paragraph of complaint. This paragraph differed from the first paragraph in that, instead of alleging generally that appellees were the owners of the real estate described, it alleged facts, showing the source' of appellees’
To this paragraph there was filed a demurrer for want of facts accompanied by a memorandum which enumerated the following among others as defects in such complaint: “(e) The complaint does not allege that plaintiffs are entitled to the possession of the premises described therein.” This demurrer was overruled and appellant answered in general denial. The cause was tried by jury and a verdict returned in favor of appellees as follows: (omitting caption) '“'We, the jury find for the plaintiffs that they were at the beginning of this ease the owners of and entitled to the possession of the property described in the complaint, -to wit: — (here follows description). That the defendant at the commencement of this action wrongfully withheld the possession of said property and we assess the amount of plaintiffs ’ damages at the sum of $100.00. T. B. Hedges, Foreman. ’ ’
Appellant filed his motion in arrest of judgment. While this motion was pending, appellees filed their 'motion to amend their complaint which in so far as it affects the question herein considered is as follows: ‘ ‘ Come now the plaintiffs and move the court for permission to make the following amendments to the first paragraph of the complaint,
The errors assigned and relied on for reversal are as follows: (1) The court erred in overruling appellant’s demurrer to the second paragraph of complaint. (2) The court erred in overruling appellant’s motion in arrest of judgment. (3) The court erred in permitting appellees to amend the complaint after verdict, and pending appellant’s motion in arrest of judgment.- (4) The first paragraph of appellees’ complaint does not state a cause of action. (5) The second paragraph of appellee’s complaint does not state a cause of action.
Under such circumstances it is settled that error predicated on such ruling can be of no avail on appeal. Raymond v. Wathen, supra; Burr v. Mendenhall, supra; Louisville, etc.,
It will be observed that the jury by its general verdict, above set out, expressly found that appellees were entitled to the possession of the real estate. The record therefore affirmatively shows, not only that a verdict returned on the second paragraph of complaint, if it had been amended as before indicated, could also rest on the first paragraph, but it also affirmatively shows that the jury in its general verdict found that appellees were entitled to possession of the real estate and that the court permitted the amendment of the first paragraph of complaint so as to conform the pleadings to the facts proved supporting such a finding. It is therefore manifest from the record that both the verdict and the judgment may and in fact do rest on the first paragraph of complaint as amended. It follows that appellant has not been harmed by the ruling on the demurrer to the second paragraph. In the case of Cincinnati, etc., R. Co. v. Cregor (1898), 150 Ind. 625, 627, 50 N. E. 760, the Supreme Court said: ‘ ‘ It is conceded by appellant that the first and fourth paragraphs of complaint are sufficient; and as the facts found in the special verdict are applicable to, and within, the issues joined on these paragraphs, the error, if any, in overruling the demurrer to the second and third paragraphs, was harmless.” To the same effect, see, Glass v. Murphy (1892), 4 Ind. App. 530, 31 N. E. 545; Hill v. Pollard (1892), 132 Ind. 588, 592, 32 N. E. 564; Miller v. Rapp (1893), 135 Ind. 614, 34 N. E. 981, 35 N. E. 693; Lime City Bldg., etc., Assn. v. Black (1894), 136 Ind. 544, 35 N. E. 829; Robinson v. Dickey (1896), 143 Ind. 205, 206, 42 N. E. 679, 52 Am. St. 417; Marvin v. Sager (1896), 145 Ind. 261, 44 N. E. 310; Lowry v. Downey (1898), 150 Ind. 364, 365, 50 N. E. 79; Pittsburgh, etc., R. Co. v. Moore
We find no reversible error in tbe record and the judgment is therefore affirmed.
Note.—Reported in 108 N. E. 602. See, also, under (1) 2 Cyc. 1014; 3 Cyc. 388; (2) 31 Cyc. 358; (3) 31 Cyc. 454; 15 Cyc. 110; 3 Cyc. 291; (4) 3 Cyc. 275; (5) 23 Cyc. 829; (6) 2 Cyc. 989.