Wah Kee v. Clark , 48 Ind. App. 462 ( 1911 )

Hottel, J.

This was an action begun before a justice of the peace for possession of real estate. From a judgment in favor of appellee, there was an appeal to the Lake Superior Court. In that court there was a trial, with a finding for appellee that he was entitled to the possession of the property, and $237.50 damages for the detention thereof. On this finding the judgment was rendered from which this appeal was taken.

Original and supplemental complaints were filed, the sufficiency of each of which, as against a demurrer, is presented by the assignment of errors.

1. The only objection urged is that “the lease had been ratified by James T. Clark, appellee in this cause, and that it was not made part of the complaint.” Neither the original nor the supplemental complaint mentions any written lease. The original complaint alleges that appellee is the owner and entitled to the possession of the property; that appellant was a tenant by the year, and that his tenancy expired September 10, 1907; that notice to deliver the premises was served at least ninety days before the expiration of the tenancy, a copy of which notice is made a part of the paragraph; that “since the expiration of said tenancy plaintiff has been and now is entitled to the possession of said premises, and the defendant unlawfully holds over and detains the possession * * * from plaintiff.” The allegations of the supplemental complaint are in all material respects the same, except that it proceeds on the theory that appellant was a- renter by the month, but alleges the same date of expiration of tenancy and the same notice to deliver possession. There being no allegation that the lease, or rental contract, was in writing, the law indulges the presumption that it was oral. Horner v. McConnell (1902), 158 Ind. 280; Crafton v. Carmichael (1902), 29 Ind. App. 320. Both the original and the supplemental complaints seem to be good as against a demurrer, and are not open to the objection urged by appellant.

2. Appellant also urges against the complaint that a motion to make it more specific should have been sustained, but there is no assignment of error presenting this question for review.

3. Alleged error of the court in overruling the motion for a new trial is urged, but neither the motion nor any of its grounds are set out in appellant’s brief. The former decisions of this court and the Supreme Court prevent a consideration of any question raised by this motion. Tisdale v. State (1906), 167 Ind. 83; Talbott v. Town of New Castle (1907), 169 Ind. 172; Harrold v. Fuenfstueck (1903), 31 Ind. App. 275; Pittinger v. Ramage (1907), 40 Ind. App. 486.

4. Complaint is also made of the ruling of the court in sustaining the demurrer to appellant’s third paragraph of answer. This answer attempted to plead tender, but failed to allege the amount, or any amount, due, or to show any connection between the tender and the damages alleged in the complaint, which was a different-amount from the tender, and also failed to allege whether the tender was refused, accepted or brought into court. This paragraph of answer is clearly bad. Other questions are raised, but none that we think entitles appellant to a reversal.

Judgment affirmed.