Wilcox v. Moudy

Elliott, J. Appellee instituted this action to recover real estate and damages for its detention. The appellants assail the first paragraph of the complaint upon the ground that it does not allege that the real estate in controversy is in Hendricks county. It is true that the complaint does not in express terms state that the land is situated in that county, but it gives a full description of it, from which the court can judicially know that it is situated in the county of Hendricks. Courts take judicial knowledge of the National surveys and of the territorial boundaries of counties, and where a full and accurate description of land is given, it can be located in the proper county without difficulty. Dutch v. Boyd, 81 Ind. 146. There is still another reason why the appellants' position can not be maintained. The venue of the action is properly laid in the title, and, as the circuit court is one of general superior jurisdiction, want of jurisdiction can only be raised by answer. Ragan v. Haynes, 10 Ind. 348; Brownfield v. Weicht, 9 Ind. 394; Godfrey v. Godfrey, 17 Ind. 6; Houk v. Barthold, 73 Ind. 21. The second paragraph of the complaint seeks to recover rent for property sold upon a decree of foreclosure and held by the mortgagor during the year allowed for redemption. The appellants counsel insists that this paragraph is bad because it shows that Julia Wilcox is the wife of her co-appellant. The argument is that she was entitled to one-third of the property immediately upon the sale by the sheriff, and that, therefore, no action could be maintained. The fallacy pervading the argument is a glaring one. If it were broadly granted that the wife’s interest became vested at once, as claimed, still the conclusion wquld by no means follow, for there would be a right to a recovery for at least the two-thirds of the real estate. The complaint certainly states a cause of [221] action entitling appellee to some relief, and a eomplaint showing a right to some relief will repel a demurrer. Bayless v. Glenn, 72 Ind. 5. Wc are not to be understood as deciding that a wife’s interest vests at the time of the sale. We decide nothing upon that point. Whether the paragraph does or does not state a cause of action against Mrs. Wilcox, is a question which is not before us. The demurrer is by her and her husband jointly, and was properly overruled, for the reason that the complaint is unquestionably good as against her husband. It is a familiar ■rule of practice that, where two or more join in a demurrer, it will be overruled if the pleading to Avhich it is addressed is good as to any one of the demurring parties. No judgment for damages was taken against Mrs. Wilcox. The proper judgment having been rendered, the ruling Upon the demurrer, even if erroneous, would have been harmless. Appellants’ counsel copies in his brief the causes assigned in his motion for a new trial, but does not discuss them. As there is no discussion of the questions presented upon the ruling on the motion, we must, under the settled rule, consider them as waived. Judgment affirmed.