Davis v. Krug

• Decision Date: 12 March 1884
• Docket Number: 11,152
• Citation: 95 Ind. 1
• Parties: Davis v. Krug
• Court: Indiana Supreme Court

95 Ind. 1

Davis v. Krug

No. 11,152

Supreme Court of Indiana

March 12, 1884

Petition for a Rehearing Overruled April 26, 1884.

From the Montgomery Circuit Court.

The judgment is reversed with costs, and the cause remanded with instructions to sustain the demurrers to each paragraph of complaint, original and supplemental, and for further proceedings not inconsistent with this opinion.

E. C Snyder and P. S. Kennedy, for appellant.

G. W Paul and J. E. Humphries, for appellee.

OPINION

Howk, C. J.

This case is now before this court for the second time. When it was first here, the opinion and judgment of the court are reported under the title of Krug v. Davis, 87 Ind. 590.

The suit is by the appellee, Elizabeth Krug, as plaintiff, against the appellant, Isaac Davis, as defendant. The appellee's complaint originally contained two paragraphs, to each of which the appellant's demurrer, for the want of sufficient facts, was sustained by the court. The appellee declined to amend or plead further, and the court adjudged that she take nothing by her suit, and that the appellant recover of her his costs. On her appeal from this judgment, the only errors here assigned were the decisions below sustaining the demurrers to each paragraph of her complaint; upon consideration whereof this court reversed the judgment below and remanded the cause, with instructions to the circuit court to overrule the demurrers to each paragraph of complaint.

After the cause was returned into the circuit court, and the appellant's demurrers to each paragraph of complaint had been there overruled, in accordance with the mandate of this court, the appellee, with the leave of the court below first had, filed what is called a supplemental paragraph of complaint, making John E. Humphries a party defendant herein. The defendant Humphries appeared and answered, admitting the truth of all the facts stated in each paragraph and the supplemental paragraph of the complaint.

The appellant, Davis, answered the complaint and supplemental paragraph, in six paragraphs, of which the first was a general denial, and each of the other paragraphs stated special matter of defence. Appellee's demurrers were sustained to the second, third, fourth and fifth paragraphs of appellant's answer; and to the sixth paragraph of such answer the appellee replied by a general denial. A change of judge having been moved for and granted, William W. Thornton, Esq., a competent and reputable attorney of the court, was duly appointed and qualified as special judge to try this cause. The issues joined were submitted to the court for trial; and, at the request of all the parties, the court made a special finding of the facts, and stated its conclusions of law thereon. Over the appellant's motion for a new trial, the court rendered an interlocutory judgment of partition, in accordance with its conclusions of law, awarding to the appellant, the appellee and the defendant Humphries each an equal one-third part in value of the real estate in controversy, and appointing commissioners to make such partition. Afterwards, the commissioners made and acknowledged, in open court, their written report of such partition, which was confirmed by the final judgment of the court, and from this judgment the appellant, Davis, alone prosecutes this appeal and has here assigned a number of errors.

This action was originally commenced on the fourth day of April, 1881, and, as we have said, the appellee's complaint then contained two paragraphs. On the former appeal, it is stated in the opinion of the court, that "both paragraphs contained substantially the same facts;" and a statement of those facts is given in the opinion. It is then said: "The only question presented is, was the complaint sufficient upon demurrer?" In other words, the question then was, were the facts stated in the complaint, and conceded to be true by the demurrer, sufficient in law to make a prima facie case in favor of the plaintiff? Upon certain concessions then made in argument by the learned counsel of the defendant, Davis, but now withdrawn, this court then held that the complaint was "sufficient upon demurrer," as to the only question then presented, considered or decided, namely, the authority and right of husband and wife, under the statute of this State, to join in the adoption of a child. That is the precise point in judgment in our former decision of this case. Krug v. Davis, supra.

Each of the paragraphs of the original complaint appears in the transcript now before us, we may well suppose, precisely as they each appeared in the record of the cause, on the former appeal, except as each of them may be affected by what the appellee calls her supplemental paragraph of complaint. The name of John E. Humphries does not appear in either of the original paragraphs of complaint, although the appellee had leave to make him a defendant therein, and although, in his answer, he admitted the truth of the facts stated therein. But, after the cause was remanded by this court, as we have seen, the appellee, with leave of the trial court, filed what she termed a supplemental paragraph of complaint, "by way of supplement to each paragraph of complaint herein." Manifestly, the appellee was seeking to avoid, if possible, by filing this so-called supplemental paragraph, the appearance even of amending the original complaint, which this court had held to be "sufficient upon demurrer."

In section 399, R. S. 1881, which is a literal re-enactment of section 102, of the civil code of 1852, it is provided as follows: "The court may, on motion, allow supplemental pleadings, showing facts which occurred after the former pleadings were filed."

In Musselman v. Manly, 42 Ind. 462, after quoting the provisions of section 102 of the civil code of 1852, it is said: "A supplemental complaint is not, like an amended complaint, a substitute for the original complaint, by which the former complaint is superseded; but it is a further complaint and assumes that the original complaint is to stand. A supplemental complaint must consist of facts which had arisen since the filing of the original complaint. It may be filed after answer; but whether filed before or after answer, it must be filed on motion and by leave of the court, and must show upon its face that it is supplemental and relates to matters which had occurred subsequent to the commencement of the action. Matters which occurred prior to the filing of the original complaint, and not stated therein, should be brought into the suit by amendment. Matters which occurred since the filing of the complaint should be brought in by supplemental complaint." So, in Patten v. Stewart, 24 Ind. 332, it was held that the office of a supplemental complaint is to bring upon the record such new facts as have occurred since the filing of the original complaint, in order that the court may grant the proper relief upon the facts existing at the time of the final decree.

In the case at bar, the so-called supplemental paragraph of complaint covers nearly four pages of the record; and, while it states many facts, there is only one fact alleged therein whereof it can be said that it occurred subsequently to the commencement of the action. The transcript shows that on April 4th, 1881, the appellee filed her original complaint, in only one paragraph; that, on April 25th, 1881, she filed the second paragraph of her original complaint, and, on the same day, the appellant was ruled to answer; that afterwards, on April 26th, 1881, the appellant filed a demurrer to each paragraph of the original complaint; and that, on May 7th, 1881, appellant's demurrer to each paragraph of the original complaint was sustained by the court, and judgment was rendered accordingly.

In the so-called supplemental paragraph of appellee's complaint, the only fact stated, which could possibly be claimed to have occurred after the commencement of this suit, was that the appellee, Krug, on April 26th, 1881, sold and conveyed the undivided one-third part of the real estate in controversy to John E. Humphries, who still owned the same. It will thus be seen that the only fact stated in the supplemental paragraph, which occurred after the commencement of this suit, namely, the execution of appellee's deed to John E. Humphries, occurred twenty-two days after the filing of the original complaint in one paragraph, one day after the filing of the second paragraph of such complaint, and on the same day on which the appellant appeared and filed his demurrer to each of such paragraphs of appellee's complaint.

As between the appellee, Krug, and John E. Humphries, the pleading subsequently filed by her may properly be denominated, perhaps, as a supplemental paragraph of complaint. But as between the appellee and the appellant Isaac Davis, it is certainly a misnomer to denominate such subsequent pleading, on her part, a supplemental paragraph of complaint. As between them, such subsequent paragraph states no new facts which have occurred since the filing of the original paragraphs of complaint; and although it is called a "supplement to each paragraph of complaint herein," it is in fact, as...