Gavisk et al. v. McKeever.

that at the May term of this court, 1869, the plaintiff herein brought a suit against the said defendant, Timothy J. Gavisk, and that when the said cause came on for trial, this court rendered a judgment against the said defendant, Timothy J. Gavisk; which judgment is in words and figures as follows, to wit: Thomas McKeever v. Timothy F. Gavisk.-Now come the parties, and it appearing to the court from the evidence, that the defendant has the sum of fourteen hundred dollars in his possession, together with wearing apparel in the county, which he unjustly refuses to apply to the payment of the judgment on which these proceedings were instituted; and it further appearing to the court that the said defendant was about to leave the State of Indiana, without leaving any property therein subject to execution. It is therefore considered and adjudged by the court, that the said defendant pay into court, instanter, the sum of one hundred and seventy-six dollars and ten cents, the amount of the judgment of the plaintiff, Thomas McKeever, against said defendant, Timothy J. Gavisk, the same on which these proceedings are instituted; and the further sum of twenty dollars and thirty-two cents, the costs in said judgment, and also the costs of this proceeding; or that, with good and sufficient surety, he stay said judgment instanter. It is further ordered and considered, that the said Timothy J. Gavisk remain in the custody of the sheriff until the said judgment be paid, or the same be stayed. From which finding and judgment the defendant excepts, and appeals to the Supreme Court, and files his bond in the sum of three hundred dollars, with Patrick Doyle as his surety; which bond is approved by the court, and the appeal granted, and the said defendant is given thirty days to file his bill of exceptions; and the defendant is hereby discharged from custody. And the said defendant did then and there file his said appeal bond, which is in the words and figures as follows, to wit:

"Thomas McKeever v. Timothy F. Gavisk.-In the Vanderburg Court of Common Pleas, May term, 1869.—We, Timothy J. Gavisk, as principal, and Patrick Doyle, as surety,

Gavisk et al. v. McKeever.

undertake and bind ourselves to the plaintiff, in the sum of three hundred dollars, that said defendant will satisfy and perform the judgment which shall be rendered in the Supreme Court of Indiana, in the appeal to said court of the above entitled cause, together with all costs which shall be adjudged against said defendant upon said appeal. May 21st, 1869.

"TIMOTHY J. GAVISK, ""PATRICK DOYLE.'

"But the plaintiff says that the defendants have wholly failed to prosecute said appeal; he has wholly failed to make and file his bill of exceptions, and utterly failed and neglected to perfect said appeal; and that thereby said judgment is and remains in full force and effect, and that the said sum of money is now due said plaintiff from the defendants herein; but that they have failed to pay the same, or any part thereof; to the damage of this plaintiff in the sum of three hundred and fifty dollars. Wherefore, he demands judgment for three hundred and fifty dollars, and all other proper relief."

There was a demurrer to this complaint, by each of the defendants separately, for want of sufficient facts, which was overruled; and the only question in the case is the sufficiency of the complaint. We hold that the complaint was sufficient.

It is true that there was no judgment rendered in the Supreme Court, nor was the appeal prosecuted to this court; and the failure so to prosecute the appeal as prayed and granted, and for which purpose the bond was given, is the breach alleged.

be

The statute, 2 G. & H. 271, sec. 555, requires that one condition of such bond, among others, shall be, "that he will duly prosecute his appeal." This condition is not in this bond, and it is therefore defective, but this defect may cured by a suggestion (2 G. & H. 333, sec. 790); and this court has held, that when the bond is filed with and made a part of the complaint, and the defect is palpable from

Unversaw v. Myers.

inspection, it is a sufficient suggestion of the defect; Cook v. The State, ex rel. Patterson, 13 Ind. 154; and we approve of the ruling in that case.

The judgment is affirmed, at the costs of the appellants. A. Dyer, for appellants.

F. M. Shackelford, for appellee.

UNVERSAW V. MYERS.

REAL ESTATE, RECOVERY OF.-Pleading.-Defective Description.-Where the complaint in an action to recover the possession of real estate described the land as "six of lot number five," etc., and the finding was "six acres of lot number five," etc.;

Held, that the finding did not cure the defect in the description of the premises in the complaint.

APPEAL from the Marion Circuit Court.

DOWNEY, J.-The appellee sued the appellant, alleging in the first paragraph of his complaint, that he was the owner in fee simple, and entitled to the possession of six—— of lot number five, in Daniel Yandes' sub-division of the Carson farm, lying south of and adjoining the two acres heretofore sold to Frederick Janeike, being two acres off the north end of said lot, situated in Marion county, Indiana; that the defendant then held possession of said land without right, and for one year past had unlawfully kept the plaintiff out of possession; wherefore, etc.

In the second paragraph he alleged, that on or about the 15th day of April, 1868, at the county of Marion, Indiana, the defendant, without leave, unlawfully entered upon the space and strip of ten feet in width off the south side of a parcel of six acres of lot number five, in Daniel Yandes' subdivision of the Carson farm, as described in the first paragraph of the complaint, of which the plaintiff was then

Unversaw v. Myers.

owner, and dug a great number of holes therein, by which plaintiff was damaged to the amount of two hundred dollars, for which he demanded judgment.

In the third paragraph he alleged that he was the owner of the strip of ten-wide off the south side of the sixacre parcel of ground described in paragraph two, to which description he refers and adopts as part of this paragraph; and said defendant, Unversaw, sets up a claim to the ownership of or some interest in the same; wherefore, etc. Answer, the general denial.

There was a trial by the court, and finding that the plaintiff was the owner and entitled to the possession of the real estate in the complaint described, to wit, "six acres of lot number five, in Daniel Yandes' sub-division of the Carson farm, in the county of Marion, and State of Indiana, to wit, commencing at a point eight rods south of the north-east corner of said lot number five, thence south twenty-four rods, thence west, parallel with the north boundary line of said lot number five, forty rods, thence north, parallel with said east line, twenty-four rods, thence east, parallel with said south line, forty rods, to the place of beginning; and the court assesses the plaintiff's damages for the detention thereof at ten dollars." The defendant moved the court to grant him a new trial, for the reasons, that the finding of the court was contrary to law, was not sustained by the evidence, and was contrary thereto. This motion the court overruled, and the defendant excepted, and, within the time allowed by the court, filed his bill of exceptions containing the evidence.

The errors assigned call in question the sufficiency of the several paragraphs of the complaint, and the correctness of the ruling of the court in refusing to grant a new trial.

The first paragraph is the only one on which the finding and judgment of the court could have been based. It is the only one which seeks the recovery of possession of real property. The second is in trespass q. c. f., and the third is to quiet title. We think the description of the land sought

The Ind'polis and Cin. R. R. Co. v. The State, ex rel. the City of Lawrenceburg.

to be recovered in the first paragraph is wholly insufficient. There is a blank in it in which we might insert acres, roods, perches, or feet, but we cannot know which was intended.

It is expressly provided by the code, that in the action to recover real property, "the plaintiff in his complaint shall state that he is entitled to the possession of the premises, particularly describing them," etc. 2 G. & H. 282, sec. 595.

The foundation upon which the recovery rests being thus insufficient, we cannot sustain the judgment, nor need we examine any other question.

The judgment is reversed, with costs, and the cause remanded.*

B. K. Elliot, for appellant.

S. E. Perkins and S. E. Perkins, Fr., for appellee. *Petition for a rehearing overruled.

37 489 131 566

37 489 149 278

37 489

155 24

THE INDIANAPOLIS AND CINCINNATI RAILROAD COMPANY v.
THE STATE, EX REL. THE CITY OF LAWRENCEBURG.

CITY.—Railroad Crossing.—Mandate.—A mandate will lie to require a railroad company having its track upon, along, or across the streets and alleys of a city, to so build and erect the same, and level and grade the said streets and alleys, their full width, as to render the use of the streets and alleys and the crossing of the track convenient for the public.

PRACTICE.-Striking Out.-If a paragraph of an answer is properly struck out on motion, as amounting to the general denial, which has been filed, this ruling cannot be made erroneous by a subsequent withdrawal of the general denial.

APPEAL from the Dearborn Common Pleas.

BUSKIRK, J.-This was a complaint and motion, in the name of the State, on the relation of the city of Lawrenceburg, against the Indianapolis and Cincinnati Railroad Company, for a writ of mandate.

It is alleged by the relatrix, in her complaint and motion,