Branch v. Faust

• Decision Date: 18 September 1888
• Docket Number: 13,385
• Citation: Branch v. Faust, 115 Ind. 464, 17 N. E. 898 (Ind. 1888)
• Parties: Branch v. Faust
• Court: Indiana Supreme Court

17 N.E. 898

115 Ind. 464

Branch v. Faust

No. 13,385

Supreme Court of Indiana

September 18, 1888

From the Madison Circuit Court.

Judgment affirmed, with costs.

R. Lake and E. B. Goodykoontz, for appellant.

C. L Henry and H. C. Ryan, for appellee.

OPINION

Zollars, J.

Appellant has assigned as errors that the third paragraph of appellee's complaint does not state facts sufficient to constitute a cause of action, and that the court below erred in its conclusions of law upon the facts specially found.

These assignments are met by counsel for appellee with the contention that error can not be assigned in this court that a single paragraph of a complaint does not state facts sufficient to constitute a cause of action, and that, as the special finding of facts and conclusions of law copied into the transcript are not signed by the judge, and have not been brought into the record by a bill of exceptions, there is no question properly before this court for decision. This contention can not be disregarded without violating the provisions of the code, and the rules of practice long since settled by the decisions of this court.

There was no demurrer to the third paragraph of the complaint filed below. Its sufficiency is brought in question for the first time by an assignment of error in this court.

The code provides that by a failure to present objections to a complaint by a demurrer or answer, all objections thereto shall be deemed to have been waived, "except only the objection to the jurisdiction of the court over the subject of the action, and except the objection that the complaint does not state facts sufficient to constitute a cause of action." R. S. 1881, section 343.

Such an objection to a complaint may be made by an assignment of error in this court, but, like a motion in arrest of judgment, it challenges the complaint as a whole, and will not be available if in the complaint there is one good paragraph. So the above section of the code clearly provides, and so it has uniformly been interpreted. Kelsey v. Henry, 48 Ind. 37; McCallister v. Mount, 73 Ind. 559; Trammel v. Chipman, 74 Ind. 474; Louisville, etc., R. W. Co. v. Peck, 99 Ind. 68; United States Ex. Co. v. Rawson, 106 Ind. 215, 6 N.E. 337.

The clerk below has copied into the transcript what purports to be a special finding of facts and the court's conclusions of law thereon. Neither the finding of facts nor the conclusions of...