77 Ind. 501 | Ind. | 1881
The only question presented for decision is, whether the complaint states facts sufficient to constitute a ■cause of action.
The averments of the complaint are as follows : The plaintiffs complain of the defendants, David M. Vance and Ezra Smith, and say, that on the 4th day of December, 1878, the same being the fifteenth judicial day of the November term of the Boone Circuit Court for said year, the plaintiff Elizabeth Schroyer, the wife of Daniel Schroyer, and Julia A. Alexander, the wife of John T. Alexander, recovered a judgment and decree in said court for the partition of certain real estate in said county (described), against the defendant, Ezra Smith, in the manner following, to wit: To the plaintiff Julia A. Alexander is adjudged and decreed the one-half interest in the fee simple, and to Elizabeth Schroyer, the plaintiff, is adjudged and decreed the one-third interest in fee simple ; and to the said defendant, Ezra Smith, is adjudged and decreed the one-sixth interest in fee simple of said lands; that the plaintiffs Julia A. Alexander and Eliza
Smith defaulted ; Vance’s demurrer, for want of facts, was overruled, and his answer filed. The other appellants were made defendants on the motion of the plaintiffs showing that they claimed an interest, and they appeared and. answered in person or by guardian ad litem, though there was not, as there ought to have been, an amendment of the complaint by inserting their names as defendants, and an averment of the facts on which relief was claimed against them. There was a trial by jury, and a verdict and judgment in favor of the plaintiffs, for the recovery of possession of the land, and against two of the defendants, for damages for the detention.
Error is assigned upon the overruling of Vance’s demurrer, and that the complaint does not state facts sufficient to constitute a cause of action.
We have no brief from the appellee, and are unable to perceive on what ground the ruling and judgment of the circuit court can be upheld. The complaint was treated as presenting an action to recover the possession of real prop
The judgment is reversed, with costs, and with instructions to sustain the demurrer to the complaint.