Big Creek Stone Co. v. Seward

• Decision Date: 05 March 1896
• Docket Number: 17,302
• Parties: Big Creek Stone Co. et al. v. Seward et al
• Court: Indiana Supreme Court

42 N.E. 464

144 Ind. 205

Big Creek Stone Co. et al. v. Seward et al

No. 17,302

Supreme Court of Indiana

March 5, 1896

Original Opinion of December 18, 1895, Reported at: 144 Ind 205.

OPINION

Hackney, C. J.

Originally we considered the complaint and supplemental complaint as one pleading, while the facts stated by us appeared from both. On the theory that they did not constitute one pleading, counsel ask a rehearing and question the statement of facts upon which our opinion rested. The complaint and the supplemental complaint are to be considered together as constituting the statement of the plaintiff's cause of action as if all of the facts stated in both were embodied in a single pleading. Together they constitute the complaint. Pouder v. Tate, 132 Ind. 327, 30 N.E. 880; Wayne Pike Co. v. Hammons, 129 Ind. 368, 27 N.E. 487; Peters v. Banta, 120 Ind. 416, 22 N.E. 95; Simmons v. Lindley 108 Ind. 297, 9 N.E. 360; Lewis v. Rowland, 131 Ind. 37, 30 N.E. 796.

Complaint is made by counsel that the sufficiency of the pleading was determined upon a question not argued by counsel for appellant, and which question was, therefore, waived.

The correctness of the rule upon which our decision was based is not questioned by counsel, and, in our opinion, is beyond dispute. It may be inquired, therefore, should the court be controlled by a rule which would estop counsel and parties to the extent that it should hold sufficient a state of facts which plainly disclosed that no cause of action existed? Most certainly not. While we are not obliged to search for errors not made manifest by the record as the appellant brings it to us, we are not so restricted by that rule that we are required to hold a pleading sufficient when it is clearly insufficient, and when to do so would create a precedent well calculated to mislead the profession and lend confusion to well settled principles of pleading and practice. When an error is presented by the record, the case is decided upon the record and not upon the argument of counsel, but, when a question is not argued and does not occur to the court in its investigations of the record, a rehearing will not be granted to permit a discussion of such question. Martin v Martin, 74 Ind. 207. In this case the sufficiency of the complaint was duly presented, and it was palpably bad. To have held it otherwise would have been a perversion of justice. If the court were limited to the...