Colchen v. Ninde

• Decision Date: 19 September 1889
• Docket Number: 13,887
• Citation: 22 N.E. 94,120 Ind. 88
• Parties: Colchen v. Ninde et al
• Court: Indiana Supreme Court

22 N.E. 94

120 Ind. 88

Colchen v. Ninde et al

No. 13,887

Supreme Court of Indiana

September 19, 1889

From the Adams Circuit Court.

The judgment is affirmed, with five per cent. damages and costs.

C. J Lutz, J. T. France and J. T. Merryman, for appellant.

R. S Peterson and E. A. Huffman, for appellees.

OPINION

Berkshire, J.

The appellees were the plaintiffs in the court below, and the appellant and one John W. Rout the defendants.

On the 6th day of March, 1883, the appellees, in the Adams Circuit Court, recovered a judgment against the said John W. Rout for the sum of $ 400 and costs, and had filed their petition in another action pending in said court brought by one Bremerkamp against said Rout and another for the payment of said judgment out of certain moneys in the hands of the clerk of said court, claimed by one Lucy Rout, and in consideration that the appellees would dismiss their said petition, allow their said judgment vacated, and new issues joined in said cause, and another trial thereof, the said John W. Rout as principal and the appellant as surety executed the obligation sued on in this action.

The appellant filed an answer to the complaint, in three paragraphs, the first being the general denial.

The second and third paragraphs were stricken out on motion, and the proper exception reserved by the appellant, and thereafter there was a trial by the court and a finding in favor of the appellees in the sum of $ 491.24, which was, on the same day, followed by a proper judgment.

After the judgment was rendered, the appellant filed a motion for a new trial, which the court overruled, and then a motion in arrest of judgment, which was also overruled, and to the action of the court in overruling the said motions the proper exceptions were taken.

There are five errors assigned, three of which, the first, third and fifth, present the same question, viz., that the complaint does not state facts sufficient to constitute a cause of action.

The appellees present a preliminary question which we will first dispose of before considering the errors assigned.

They contend that the motion for a new trial and in arrest of judgment came too late, not having been made until after the rendition of the judgment.

The point is well taken as to the motion in arrest of judgment. Hansher v. Hanshew, 94 Ind 208, and cases cited. The motion for a new trial could be made at any time during the term at which the finding of the court was announced, or on the first day of the next term if the finding was announced on the last day of the preceding term. Section 561, R. S. 1881; Secor v Souder, 95 Ind. 95. But until the motion for a new trial was disposed of the judgment preceding it was not final within the meaning of the statute regulating appeals. New York, etc., R. R. Co. v. Doane, 105 Ind. 92, 4 N.E. 419.

The objection which is raised to the complaint is, that there is no copy of the bond, which is the foundation of the action filed with it. If the statute (section 362, R. S. 1881), which requires the original or a copy of the writing which is the foundation of the action to be filed with the complaint, is not complied with, the pleading will not be good as against a demurrer. But when the sufficiency of the pleading is called in question after verdict, by a motion in arrest or by error assigned in this court, a different rule prevails; all intendments are taken in favor of the pleading, and if facts sufficient are stated to bar another suit for the same cause of action, the verdict cures all other defects, and the complaint will be held sufficient to uphold the judgment. Donellan v. Hardy, 57 Ind. 393; Balliett v. Humphreys, 78 Ind. 388; Sims v. Dame, 113 Ind. 127, 15 N.E. 217; Chapell v. Shuee, 117 Ind. 481,...