Levi v. Engle , 91 Ind. 330 ( 1883 )

Howk, J.

— This suit was commenced on the 17th day of August, 1880, by the appellee, Engle, administrator with the will annexed, of the estate of William Graf, deceased, against the appellants, Samuel M. Jones, Isaac Levi, William Alexander and -John Baylor. The object of the suit was to recover the possession of lot No. 122, in the town of Osgood, in Ripley county, of which the appellee alleged that he was the owner in fee simple and entitled to the possession, and that the defendants had possession thereof, without right, and for one year had unlawfully kept appellee out of possession. Jones answered separately, that before the commencement of the suit he had sold and conveyed all his interest, legal and equitable, in the lot in controversy to Rhoda Levi, and disclaimed having any interest or estate in the property. Isaac Levi answered, setting up a contract with appellee’s testator, William Graf, in his lifetime, for a specified part of the lot. Alexander and Baylor each answered that he was in -possession of a part of the lot, as the tenant of Rhoda Levi, and disclaimed any other interest therein. Upon their joint affidavit of such tenancy, Alexander and Baylor moved the court that Rhoda Levi be made a defendant in this action, which motion was sustained; and thereupon Rhoda Levi appeared and answered. The cause was put at issue and tried by the court, and a finding was made for the appellee, except as to the part of the lot claimed by Isaac Levi, and judgment was rendered accordingly.

Rhoda Levi alone appeals to this court, her co-defendants below having appeared and declined to join in her appeal. The first error of which she complains is the overruling of her demurrer to appellee’s complaint, for the want of sufficient-facts therein to constitute a cause of action. In section 595 of the civil code of 1852, in force at the time (section 1054, R. S.1881),it is provided that in an action to recover the possession of real estate, “ The plaintiff in his complaint shall state that he is entitled to the possession of the premises, particularly describing them, the interest he claims therein, and that the defendant unlawfully keeps him out of possession.” It is objected to the sufficiency, of appellee’s complaint in this case, that it is not stated therein that Rhoda Levi had unlawfully kept the appellee out of possession of the lot in controversy, or any part thereof. This objection to the complaint seems to be well taken. Rhoda Levi was not a party to the suit when it was commenced; but afterwards, when the court ordered that she be made a party defendant, the appellee ought to have so amended his complaint as to state therein that she had unlawfully kept him out of possession of the lot, or of some part thereof. In Vance v. Schroyer,. 77 Ind. 501, it was held, that where new parties are admitted into a case, the complaint must be amended by inserting their names therein and making proper averments concerning them. To the same effect, substantially, is the case of McCarnan v. Cochran, 57 Ind. 166.

Filed Nov. 20, 1883.

We are of opinion, therefore, that the court erred in overruling the demurrer of Rhoda Levi to appellee’s complaint. When the court ordered that she be made a party defendant in this action, the appellee did not amend his complaint, as he ought to have done, by inserting. her name therein or otherwise, and did not aver that she had unlawfully kept him out of possession of the lot in controversy, or of some part thereof. For the want of such amendments the complaint did not state a cause of action against Rhoda Levi, and her demurrer thereto ought to have been sustained.

As the judgment must be reversed for the wrant of a sufficient complaint against Rhoda Levi, we need not now consider or decide any of the questions discussed by her counsel, arising under the alleged error of the court in overruling her motion for a new trial.

The judgment is reversed with costs, and the cause is remanded with instructions to sustain Rhoda Levi’s demurrer to the complaint, and for further proceedings.