JUDGES OF THE SUPREME COURT OF THE STATE OF INDIANA. DURING THE PERIOD COMPRISED IN THIS VOLUME. HON. JAMES H. JORDAN.*§ HON. ALEXANDER DOWLING.+|| HON. JOHN V. HADLEY.‡ HON. LEANDER J. MONKS.§ HON. JOHN H. GILLETT.§§ HON. OSCAR H. MONTGOMERY.** Chief Judge at May Term, 1904. † Chief Judge at November Term, 1904. ? Elected in 1894, reëlected in 1900. Elected in 1898, reëlected in 1904. Elected in 1898. Appointed January, 1902; elected in 1902. **Elected in 1904. (xxxvii) OFFICERS OF THE SUPREME COURT. ATTORNEY-GENERAL, REPORTER, GEO. W. SELF. CLERK, ROBERT A. BROWN. SHERIFF, GEORGE W. WEIR. LIBRARIAN, OMAR O'HORROW. (xxxviii) CASES DECIDED IN THE SUPREME COURT OF THE STATE OF INDIANA, AT INDIANAPOLIS, MAY AND NOVEMBER TERMS, 1904, IN THE CAMBRIDGE LODGE, No. 9, KNIGHTS OF PYTHIAS v. ROUTH. [No. 20,318. Filed May 24, 1904.] APPEAL AND ERROR.-Joint Assignment.—Where a complaint is in three paragraphs, and the answer thereto is in seven paragraphs, the first five of which are addressed exclusively to the second and third paragraphs of complaint, and the sixth is addressed exclusively to the first paragraph thereof, and a several demurrer is filed to each of such paragraphs, and one of the errors assigned is that "the court erred in overruling the demurrer of appellant to the 1st, 2d, 3d, 4th, 5th and 6th paragraphs of answer," the assignment is joint, and if any one of such answers is good no error is presented. pp. 5, 6. LANDLORD AND TENANT.-Holding Over.-Special Findings.-Burden of Proof.-Where one paragraph of complaint is for recovery of real property under 27106 Burns 1901, and 25 of the same act (27092 Burns 1901) provides "if a tenant refuse or neglect to pay rent when due, ten days' notice to quit shall determine the lease, * * unless such rent be paid at the expration of said ten days," and the special finding fails to show either (1) that rent was due at the time of giving the notice, or (2) that such rent was not paid within the ten days, the plaintiff must fail, the burden being on the plaintiff to prove such facts affirmatively. p. 8. NEW TRIAL AS OF RIGHT.-Where the first paragraph of complaint was for possession of real property by landlord against tenant, under 27106 Burns 1901, the second was in ejectment, and the third to quiet title, a new trial as of right is not demandable, since such new trial can not be demanded as to the first paragraph, the judgment being rendered upon the entire complaint. p. 9. Cambridge Lodge, etc., v. Routh. From the Henry Circuit Court; W. O. Barnard, Special Judge. Action by Cambridge Lodge, No. 9, Knights of Pythias against Charles W. Routh. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901. Affirmed. W. A. Medsker, E. II. Bundy and Shively & Shively, for appellant. M. E. Forkner and Robbins & Starr, for appellee. JORDAN, C. J.-This action was tried and determined in the lower court adversely to appellant on its complaint, consisting of three paragraphs, the first of which is the landlord's statutory action for recovery of the possession of the premises in controversy. It is therein alleged that on the 1st day of May, 1899, and long prior thereto, the plaintiff, Cambridge Lodge, No. 9, Knights of Pythias, was, and now is, the owner in fee simple and in possession of the following described real estate, situated in Wayne county, Indiana, viz., lots numbered sixteen, seventeen, and eighteen in block three, west of the river and north of the National Road, in Cambridge City, and also the following parcel of ground adjoining said lots on the west: Commencing thirty-three feet west of the alley in said block number three; running west along the National Road seventy feet; thence north 120 feet to the northwest line of said lot sixteen in block three. The lots above described formed the east boundary of said ground. On May 1, 1899, the plaintiff leased and rented to the defendant Charles W. Routh the right, privilege, and use of a certain driveway and passageway situate upon, through, and over a part of said real estate, about fourteen feet in width and 120 feet in length, leading to and from a livery barn, then owned and occupied by the defendant, to Main street in said town, and situated about twelve to fourteen feet west of what is known as the Pythian Temple, in said town. |