Chicago, I.&E. Ry. Co. v. Indiana Natural Gas & Oil Co.
| Decision Date | 08 March 1904 |
| Citation | 32 Ind.App. 519,70 N.E. 270 |
| Parties | CHICAGO, I. & E. RY. CO. v. INDIANA NATURAL GAS & OIL CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.
Action by the Indiana Natural Gas & Oil Company against the Chicago, Indiana & Eastern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Knight & Brown and Hawkins & Smith, for appellant. Miller, Elam & Fesler, S. D. Miller, W. O. Johnson, and C. C. Shirley, for appellee.
The appellee filed its complaint against the appellant September 9, 1901. The appellant, September 27, 1901, filed its answer in eight paragraphs, the eighth being a general denial, and its cross-complaint in five paragraphs. October 7, 1901, the appellee filed its demurrer to each of the paragraphs of the answer, except the eighth, and also its demurrer, for want of sufficient facts, to each paragraph of the cross-complaint. October 29, 1901, the court sustained the demurrer to each of the first six paragraphs of the answer, and overruled the demurrer to the seventh paragraph of answer. At the same time the court overruled the demurrer to the first, fourth, and fifth paragraphs of cross-complaint, and sustained the demurrer to the second and third paragraphs of cross-complaint. November 18, 1901, the appellant dismissed its seventh paragraph of answer and its fifth paragraph of cross-complaint. December 2, 1901, the appellee amended its complaint. On the same day the trial was commenced, “the answer of general denial being treated as refiled after the filing of” the amended complaint. The appellee having introduced its evidence, the appellant dismissed its first and fourth paragraphs of cross-complaint, and the court, after hearing further evidence and argument, found for the appellee on its amended complaint. The appellant, by its assignment of errors, questions the action of the court in sustaining the appellee's demurrer to the first six paragraphs of answer, severally, and in sustaining the appellee's demurrer to the second and third paragraphs, severally, of the cross-complaint.
The transcript of the record before us contains the first six paragraphs of answer, but it does not contain the seventh paragraph. It contains the second and third paragraphs of cross-complaint, but it does not contain the first, fourth, or fifth paragraphs of cross-complaint. The complaint, it thus appears, was amended after the ruling upon the demurrers, and the appellant did not plead to the amended complaint, but upon the trial the answer of general denial was considered as if refiled. When the complaint was amended, the original complaint, to which the answers were directed, ceased to be a part of the record on appeal, unless brought in by bill of exceptions...
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