noting that "a landlord has a right to attempt to oust his tenant, if he thinks he has just grounds therefor; and in such case he is not to be held liable for damages if he fails," but, otherwise, malice may be found
How later courts described this case
- noting that "a landlord has a right to attempt to oust his tenant, if he thinks he has just grounds therefor; and in such case he is not to be held liable for damages if he fails," but, otherwise, malice may be found
- “It is our conclusion that Judge Vincent’s ruling did not become the law of the ease so as to preclude either himself or another judge of the same court from changing it before final judgment. The decision in each case was that of the Marion district court rather than of any individual judge thereof, and could be corrected by the court at any time before entry of final judgment. As Justice Weaver said, the defendants had no vested right to require the court to perpetuate its mistake.”
- fair inference of malice could be drawn from landlord's various forcible entry and detainer actions and notices to quit to support cause of action for breach of covenant of quiet enjoyment by tenant even though tenant remained in possession
- “[judge’s prior] ruling did not become the law of the case so as to preclude either himself or another judge of the same court from changing it before final judgment”
Written by the judges who cited it.
The opinion
MulroNey, J.
(specially concurring)- — I concur in all but Division I. I would affirm Judge Prall’s ruling on the motion 1o dismiss on the ground he stated: that the amended and substituted petition contained substantially different averments. The first petition was interpreted by Judge Vincent as an action for malicious prosecution. In the second it was specifically pleaded that the action was for breach of contract including breach of the covenant for quiet enjoyment.