Berry v. Hubbard

Black, J. The appellant brought his action before a justice of the peace, alleging in his complaint that on, etc., he was in peaceable possession of land described, i£ has ever since been and still is entitled to the possession [402] thereof and the crop of wheat thereon; ” that the appellee on, etc., “ did, with strong hands and force of arms, unlawfully and forcibly enter into and upon said lands, and has ever since held and still holds the possession thereof with strong hands, unlawfully and forcibly, and that thereby the plaintiff has sustained damages in the sum of,” etc. Judgment for possession and for damages was demanded. On appeal to the court below a jury returned a general verdict for the appellee, with answers to interrogatories. The appellant’s motion for a new trial was overruled, and this ruling is assigned as error. The rulings of the court in excluding certain evidence are also assigned as errors; but, as has been decided very often, we can not examine such rulings, constituting causes for a new trial, or consider the argument of counsel concerning them when thus independently assigned as errors. The questions presented by the motion for a new trial and the argument of counsel relate to the sufficiency of the evidence and the giving and the refusal of instructions. The evidence showed that in 1873 the appellee became a tenant of a certain farm, and that the tenancy, which was from year to year, had not been terminated; that in the fall of 1890 his landlord let one field of this farm, the land here in controversy, to the appellant, who entered the field and plowed it and sowed wheat in it, not having permission to do so from the appellee. At harvest time, in 1891, the appellant was about to go upon the field to harvest the wheat, when he was prevented from doing so by the presence of the appellee and his commands and threats of violence. The evidence does not show that when the appellee thus forcibly resisted the appellant’s attempted entry, the latter had right of possession or had been deprived by the appellee of [403] peaceable possession held under a claim of right; on the contrary it appears that the appellee was but resisting unauthorized invasion of his own possession. The evidence would not have upheld a verdict in favor of the appellant. Archey v. Knight, 61 Ind. 311; Judy v. Citizen, 101 Ind. 18. Filed Nov 15, 1892. The verdict being clearly right upon the evidence, we could not disturb the judgment because of the erroneous giving or refusal of instructions; and, therefore, it is unnecessary to examine the instructions given or those refused. Wolfe v. Pugh, 101 Ind. 293; Morris v. State, ex rel., 94 Ind. 565. The judgment is affirmed.