Millington v. O'Dell

35 Ind. App. 225 | Ind. Ct. App. | 1905

Comstock, C. J.

Appellee, who was plaintiff below, brought this action against appellant, before a justice of the peace of Marion county, for the unlawful detention of, and to recover possession of, real estate consisting of a dwelling-house in the city of Indianapolis. The justice rendered judgment in favor of the plaintiff for possession of the premises, and damages in the sum of $5 for the detention thereof. An appeal was taken to the Superior Court of Marion County. The trial in said court resulted in favor of the plaintiff for the possession of the real estate, and damages in the sum of $118.50 for unlawful detention.

1. The' complaint alleges that the plaintiff on the 28th day of August, 1903, leased the premises in suit for the term of one month from the 28th day of August, 1903, and that said term expired on the 27th day of September, 1903. A copy of the lease is made a part of the complaint, and stipulates for “the tenancy to expire with the 27th day of September, 1903.” An answer in two paragraphs was filed: (1) General denial; (2) that the defendant rented the premises from plaintiff on the — day of-, 1902, and since said date has continuously occupied the same, and continued paying therefor the sum of $22.50 per month in advance, and that the defendant tendered to plaintiff on the 28th day of September, 1903, the sum of $22.50, and defendant refused to accept same, and that the plaintiff has not at any time demanded possession or served notice on him to vacate said premises; that the agent of plaintiff, who rented the premises, knew at said time that defendant was only a roomer in said house; that he knew that the premises described in the complaint have been used and are now used as a house of prostitution. Judgment for costs is asked. No reply was filed to the answer. None was necessary. Turner v. Simpson (1859), 12 Ind. 413; Carter v. Edwards (1861), 16 Ind. 238.

The overruling of appellant’s motion for a new trial' and numerous independent specifications of error are assigned, but appellant asks for a reversal of the judgment “because of the substantial injustice done him in the three following instances.” (1) The trial court erred “in excluding the evidence of the general reputation of this house of prostitution, and the district of prostitution surrounding it.” (2) The court erred in rendering judgment for appellee “when there was no thirty days’ notice to vacate.” (3) In rendering judgment against appellant for the rental value of the property. Judgment should have been for costs only. Even if appellee knew it was a house of prostitution, and used as such, the judgment should have- been only for costs enough to regain possession- of the premises.

2. Sadie O’Brien, a witness on behalf of the defendant, was asked on her direct examination to state the reputation of the house in suit. Also to state the reputation of the neighborhood as to its being a district for houses of prostitution. The court sustained the objections to both of these questions. Counsel for appellant did not at any time state to the court what facts he intended to establish, nor did he make any offer to prove any fact which such question might elicit. The ruling complained of is therefore not properly reserved. Breedlove v. Breedlove (1901), 27 Ind. App. 560. If the character of the house was material under the issues — which we do not admit — it was established without contradiction by abundant evidence’.

3. The complaint and the written lease show that the premises were leased for a specified time. No notice to quit was "therefore necessary. §7094 Burns 1901, §5213 R. S. 1881.

4. While general damages are claimed for the property, they can only include rents for use and occupancy. The rental value of the house during the time thus detained was the proper measure of damage. Barnett v. Feary (1885), 101 Ind. 95; Campbell v. Nixon (1891), 2 Ind. App. 463, 473.

There was evidence to warrant the amount of the recovery. The finding and judgment were within the issues. Counsel for appellee suggest that the appeal should be dismissed for failure to comply with the rules of the court in the preparation of the transcript and the brief. The suggestion is not without merit, but we have waived the failure to comply with the rules, and, upon the merits of the case, find no error for which the judgment should be reversed.

Affirmed.