Louisville, N. A. & C. R. Co. v. Peck

• Decision Date: 10 December 1884
• Docket Number: 11,570
• Parties: Louisville, New Albany and Chicago Railway Company v. Peck
• Court: Indiana Supreme Court

99 Ind. 68

Louisville, New Albany and Chicago Railway Company v. Peck

No. 11,570

Supreme Court of Indiana

December 10, 1884

From the Clay Circuit Court.

Judgment is affirmed, with costs.

G. W Friedley, for appellant.

I. N Pierce and T. W. Harper, for appellee.

OPINION

Zollars C. J.

Appellee's complaint is in two paragraphs. In the first he asks a judgment for the value of cattle that were killed, and in the second a judgment for the amount of damage to other cattle that were injured by a train of appellant's cars. The cattle entered upon the track and were killed at a point where the company had neglected to build and maintain a fence.

Under the two assignments of error, that the court below erred in overruling its motion in arrest of judgment, and that neither paragraph of the complaint states facts sufficient to constitute a cause of action, appellant, by its counsel, asks a reversal of the judgment because of the insufficiency of the complaint.

The assignment, that neither paragraph of the complaint states facts sufficient to constitute a cause of action, really presents no question. Such an assignment can only be made in regard to the complaint as a whole, and when properly made, as also a motion in arrest of judgment as here made, calls in question the sufficiency of the complaint as a whole. Hence, if either paragraph is sufficient, neither of the assignments here can be maintained. Leedy v. Nash, 67 Ind. 311; Smith v. Freeman, 71 Ind. 85; Wagner v. Wagner, 73 Ind. 135; Elmore v. McCrary, 80 Ind. 544; Iles v. Watson, 76 Ind. 359; Jones v. Pothast, 72 Ind. 158; Toledo, etc., R. W. Co. v. Milligan, 52 Ind. 505; Spahr v. Nicklaus, 51 Ind. 221.

The only objection urged against the first paragraph of the complaint is, that there is no formal statement that appellee was damaged by the killing of his cattle. This is not tenable, especially after verdict. In that paragraph all of the facts attending the killing, and the value of the cattle, are stated, with a prayer for judgment to the amount of the value of the cattle. This is sufficient under the statute. Section 338, R. S. 1881. This being so, the motion in arrest was properly overruled, and the assignment as to the sufficiency of the complaint can not be maintained. It is not necessary, therefore, to examine the second paragraph.

The objections urged against it, however, are not tenable here. It is said that there is no averment in that paragraph that the cattle therein mentioned were damaged. It is averred that they were run upon, and cut, crushed and injured. This is clearly sufficient after verdict. It is said further that this paragraph was not signed by appellee, nor by his attorney. The statute requires that pleadings shall be subscribed by the party or his attorney (section 358, R. S. 1881), but as there was no motion to strike out or reject the paragraph, and the defect is one that might have been cured by amendment below, it will not be regarded on appeal. Lowry v. Dutton, 28 Ind. 473; Fankboner v. Fankboner, 20 Ind. 62; Harris v. Osenback, 13 Ind. 445; Lentz v. Martin, 75 Ind. 228.

If the complaint were defective in the particulars pointed out, they were such defects as would clearly be cured by the verdict. See Baltimore, etc., R. R. Co. v. Kreiger, 90 Ind. 380; Louisville, etc., R. W. Co....