31 Ind. App. 360 | Ind. Ct. App. | 1903
Lead Opinion
This action was brought by the appellees, Charles E. Moore and Mary L. Moore,' husband and
The first specification of error discussed is the action of the court in overruling appellant’s demurrer for want of facts to the first paragraph of the complaint. Said paragraph is as ’ follows: Plaintiffs say that “on the —■— day of June, 1901, the plaintiffs were in the legal and peaceable possession, as lessees, of a certain one-story brick building, situate on part of lot number twelve, block number four, in the town of Roachdale, Putnam county, Indiana, in which they were then, and for some months prior thereto had been, carrying on the business of printing and publishing a newspaper and operating a news and job printing office; that on or about the- day of
It is urged against this paragraph that the building occupied by appellees was upon the edge of the adjoining lot, and that under such allegation neither the landlord not tenant would have an easement in the adjoining lot for support until the building had stood and had the advantage of the support for twenty years. Moellering v. Evans, 121 Ind. 195, 6 L. R. A. 449, is cited in support of this claim. See, also, Bohrer v. Dienhart Harness Co., 19 Ind. App. 489. Appellees meet this objection with the statement that the case cited is not applicable “to a party wall built as in this case, one-half on each of the adjoining lots, each adjoining proprietor owning one-half of the wall, and having an easement for lateral support in the other half.” The paragraph in question herein contains no averment showing that the wall is a party wall and standing one-half on each of the adjoining lots. The case cited is decisive of the question. It
The second and third paragraphs of the complaint allege that the wall in question was a party wall between the properties of appellant and appellee Batman; that the appellant did the excavating, which caused the wall to fall, upon his own property, with the knowledge and consent of appellee Batman, and that under such facts appellant would not be liable for the injury of the property of appellees. The consent of appellee Batman to the acts of appellant could not affect the right of appellees Moores to recover for damage to their property.
It is next urged that the court erred in sustaining appellees Moores’ demurrer to the second paragraph of 'the appellant’s answer to the complaint. The second paragraph' of appellant’s answer seeks to answer each and all of the paragraphs of plaintiffs’ complaint, and sets up an agreement in connection with the purchase of the two and one-half feet of ground by appellant from appellee Batman, that the wall, one-half of which stood on the ground so purchased, should be and become a party wall, and that appellant should have the right to use said wall as a party wall, to build onto the same, extend the same, and do such other things as he would have a right to do in connection with a party wall of which he was one of the proprietors. The averments of the second paragraph of answer as to appellant’s rights in connection with said wall do not show that anything was added to his right to destroy said wall, or that his liability as fixed by law was in anywise limited. He had the right, as one of tire proprietors, to build to said wall or use the same in connection with his building, but not to destroy the same or interfere with the use of the same by the other owners. He had a right to do these things so long as he did not injure the other owners. As the court said in Brooks v. Curtis, 50 N. Y. 639, 10 Am. Rep. 545,
It is contended that the court erred in sustaining objections to certain questions propounded to various witnesses, and in admitting certain evidence over the objection of appellant, and in giving certain instructions to the jury; and that the amount of the recovery is too large. Appellees insist that neither the evidence nor the instructions are in the record, and that in the discussion of these points the rules of the court are not complied with by proper references to the record showing the rulings of which appellant complains.
The judgment must be reversed for the first error discussed, and as the other questions may not arise upon a second trial they are not considered..
The causes for a new trial relate to the evidence and the instructions of the court. It is claimed by appellee Batman that the instructions are not properly in the record because it does not appear by proper order-book entry that they were filed, and that therefore they can not be considered. An examination of the record sustains this claim. Instructions relating thereto can not be considered.
It is also claimed that the evidence is not in the record. The precipe is as follows: “The clerk of said court will prepare and certify a full, true, and complete transcript of all the proceedings, docket entries, motions, instructions asked, given, and refused, bills of exceptions, and all papers and affidavits on file, together with the motion for a new
It is claimed that the precipe directs the clerk to certify all the bills of exceptions and original manuscript of the evidence, and that he could not do this without copying them; that the transcript does not purport to contain copies of either, but attempts to make the original bill of exceptions, embracing the evidence, a part of the record, without copying, and that this could not be done by following the directions of the precipe. The clerk certifies that the foregoing precipe “is a full, true, and complete transcript from the records in my office of all the pleadings, papers, entries, order-book entries, records, affidavits, bills of exceptions, and evidence, and bills of exceptions embodying the evidence, together with the motion for a new trial, instructions, and all other motions and orders given in said cause. * * * after said trial, at the request of John P. Allee, the attorney for Moses D. Payne, defendant in said cause, said reporter on the 19th day of February, 1902, filed in my office her original longhand manuscript of said shorthand notes of said evidence, which longhand manuscript was duly certified to by said reporter, and that after-wards said longhand manuscript of said evidence was on the 19th day of February, 1902, embodied and incorporated in a bill of exceptions by said defendant, which, after being duly certified and signed by Presley O. Oolliver, judge of said court, was on the 19th day of February, 1902, filed by said defendant in my office; that said longhand manuscript of the evidence in said cause, embodied in said bill of exceptions so filed as aforesaid in my officé, is the same longhand manuscript thereof filed in my office by said official reporter before the same was embodied in said bill of exceptions, and that said bill of exceptions so embodying the evidence in said cause was filed in my office by said defend
J. W. Blades testified, on behalf of the cross-complainant, that, as her agent, he did not give his consent to the appellant to make the excavation. Cross-complainant Batman, in her own behalf, testified that she did not give her consent to the appellant to make the excavation. To meet this testimony the appellant testified that he had the consent of Mrs. Batman to make the excavation as he did. James E. Edwards was present at the time of the purchase of the wall, and knew the conditions. Appellant offered to prove by him that Mrs. Batman at the time the deed was made gave her consent for him to make the excavation as part of the consideration of the purchase. The evidence was excluded and exception taken. We think this evidence should have been admitted, not only to corroborate appellant’s own testimony, but because the cross-complainant had offered the issue in her pleadings and in her evidence.
The judgment is reversed, with instructions to the trial court to sustain the demurrer to the first paragraph of the complaint, and to sustain appellant’s motion for a new trial as to the cross-complaint of appellee Batman.
Rehearing
On Petition fob Reheabing.
Appellees Moore and Moore ask a rehearing in this cause upon the alleged error of the court in holding that the first paragraph of the complaint did not show a cause of action. The holding was upon the authority of Moellering v. Evans, 121 Ind. 195, 6 L. R. A. 449. The case was cited by appellant, and the argument against the sufficiency of the paragraph based upon said case. Appellees met the argument with the claim that that ease, to
But counsel insist that the averments of this paragraph that defendants negligently and unlawfully did the excavation that- caused plaintiff’s building to fall are sufficient to make it good. The characterization of the acts without averments showing that the acts were unlawfully done is not sufficient. THe purpose of a party in doing a particular thing is not material, if he had the right to do it.
Appellee Moore testified, over appellant’s objection, in his examination in chief, to the value of different items of property in question,, by reference to an invoice made by himself and his wife with a view of selling a half interest in the same to a third party, the prospective purchaser taking no part in the invoice. Upon cross-examination, appellant propounded to him the following questions: “I will ask this witness to state on your cross-examination, in reference to the value that you fixed on this type that you had on hands at the time that this building fell, what was the fair market value of that type that you had on hands at that time, if placed on the market for sale, without any reference to the list price ?” “Mow, then, do you know, without reference to the figures, that you testified from here — do you know what the fair market value, without any reference to any list price or any figures you made — the fair market value of all that type that you had on hands at that time ?” “Mow, then, will you tell this jury, without any reference to any inventory or price lists, if that engine was put on the
Petition overruled.
Concurrence Opinion
concurring. — I think the questions set out should have been answered, and concur in the result reached.