Holman v. Elliott

On Petition for a Rehearing.

Woods, C. J.

Counsel for the appellant call attention to *234sections 596, 597, 600 and 606 of the code of 1852, under which the trial was had, and insist that it is not true that the appellant, by appearing and pleading the general denial, admitted possession by him of all the lands sought to be recovered, and consequently that the plaintiff was entitled to judgment against him for costs and for the recovery of such portions of the land as were found to belong to the plaintiff

We adhere to the proposition as stated in the opinion. There is nothing in it inconsistent with the statutory provisions referred to, which are, in substance, that, under an answer of general denial to a complaint for the recovery of real estate, the defendant may “ give in evidence every defence to the action that he may have, either legal or equitable; ” that “ When the defendant makes defence, it shall not be necessary to prove him in possession of the premises; ” that Where there are two or more plaintiffs or defendants, any one or more of the plaintiffs may recover against one or more of the defendants, the premises, or any part thereof, or any interest therein, * * but the recovery shall not be for a greater interest than that claimed; ” and that “The plaintiff must recover on the strength of his own title.”

It may be observed that in section 613 it is provided that by disclaiming any interest or estate in the property, or by suffering judgment to be taken against him without answer, “ the defendant shall recover costs:”

If, instead of making common cause with other defendants, and putting the plaintiff upon proof of his title to all of the lands, as against him,, the appellant had disclaimed any interest in the four tracts, and confined his denial to the two tracts which were conveyed to him, he would have been entitled to a decision whether, upon the facts found, the appellee was entitled to recover those two tracts; but, by denying the entire complaint, he joined issue with the plaintiff in respect to all the lands sought to be recovered; and, it being shown that the plaintiff was entitled to recover a part of the land, he was entitled to recover it of the appellant, whose possession was ad*235mitted or put beyond dispute, just as if be had been the sole defendant, or as if he alone had pleaded the denial. In a proper case, judgment will be rendered for or against one of two or more plaintiffs or defendants ; but the defendant who would avail himself of that rule must be careful not to make or join others in making issues which he can not fully sustain.

If the judgment extends to property not described in the complaint, it is perhaps a void and harmless error; but in any event an exception to that part of the judgment, or to the overruling of a motion to strike it out, was necessary to present the question on appeal. Merritt v. Pearson, supra.

There are some other matters in the argument upon the petition in reference to points not presented in the original brief, but if considered they could not change the result. When considering the judgment upon a special verdict, references to the evidence are not permissible. Shaffer v. Ryan, 84 Ind. 140.

Petition overruled.