Cottrell v. Aetna Life Ins. Co.

• Decision Date: 18 September 1884
• Docket Number: 11,056
• Parties: Cottrell et ux. v. AEtna Life Insurance Company
• Court: Indiana Supreme Court

97 Ind. 311

Cottrell et ux. v. AEtna Life Insurance Company

No. 11,056

Supreme Court of Indiana

September 18, 1884

Reported at: 97 Ind. 311 at 313.

From the Superior Court of Vigo County.

Affirmed, at appellants' costs.

W. W Rumsey, for appellants.

N. G Buff, J. T. Pierce and A. M. Black, for appellee.

OPINION

Hammond, J.

This was an action by the appellee against the appellants for the foreclosure of a mortgage and the appointment of a receiver. An answer and a cross complaint were filed by the appellants. The appellee's demurrer was sustained to the cross complaint. A trial by the court resulted in a finding and decree of foreclosure, and the appointment of a receiver.

The appellants assign for error that the court below erred in appointing a receiver, and in sustaining the demurrer to their cross complaint, and that the appellee's complaint does not state facts sufficient to constitute a cause of action.

No exception was taken in the court below to the appointment of the receiver, and no question, therefore, in reference to such appointment is before us. It is well settled that if an exception is not taken in the trial court to the ruling, order or judgment complained of, the decision can not be reviewed by this court. 2 Works Pr., sections 1071-2.

The appellants in their cross complaint asked for a reformation of the mortgage sued upon, claiming that, by the fraud of the appellee, it did not correctly express the agreement of the parties. A complaint, cross complaint or counter-claim to reform a written instrument, is insufficient upon demurrer, if such instrument, or a copy of it, is not filed with the pleading. Plowman v. Shidler, 36 Ind. 484; Campbell v. Routt, 42 Ind. 410; Branham v. Johnson, 62 Ind. 259.

The appellants did not file with their cross complaint the original or a copy of the mortgage, and for this reason, if for no other, the demurrer was properly sustained.

No objection is urged against the appellee's complaint, except that it is not sufficient to authorize the appointment of a receiver. But it is sufficient for the foreclosure of the mortgage declared upon. This would have made it good upon demurrer, and, with greater reason, it must be held sufficient as against an attack made for the first time in this court.

After the appellants filed their appeal bond, their motion was made and sustained to discharge the receiver. The appellee has assigned cross error calling in question the correctness of this ruling. The motion to discharge the receiver is copied in the transcript, but not in the bill of exceptions, at the place designated for it. Reference is there made to the place in the record where it is copied. Instead of...