Diggs v. Way

• Decision Date: 14 October 1898
• Docket Number: 2,455
• Citation: 51 N.E. 429,22 Ind.App. 617
• Parties: DIGGS ET AL. v. WAY ET AL
• Court: Indiana Appellate Court

51 N.E. 429

22 Ind.App. 617

DIGGS ET AL. v. WAY ET AL

No. 2,455

Court of Appeals of Indiana

October 14, 1898

Rehearing denied June 30, 1899, Reported at: 22 Ind.App. 617 at 620.

From the Randolph Circuit Court.

Reversed.

B. F Marsh, E. S. Jaqua and Engle & Parry, for appellants.

S. A Canada, J. W. Newton and G. H. Ward, for appellees.

OPINION

BLACK, J.

It is assigned as error that the complaint did not state facts sufficient to constitute a cause of action. The complaint contained two paragraphs. The court in its special finding and judgment treated the case as an action against the appellants for the recovery of damages for the wrongful conversion to their own use of a certain stock of merchandise. The appellants were shown in the second paragraph of complaint to have obtained possession of the goods through purchase from others, not parties, who had bought them and taken possession under a sale on execution against an owner of the goods, one Lindsey L. Ludwick, by whom they had been mortgaged to the appellees, before the issuing of the execution, to secure certain indebtedness of the mortgagor to the mortgagees. A copy of the chattel mortgage was filed with the original complaint, and was referred to in each paragraph as a part thereof marked as an exhibit; and it was alleged in each paragraph that the mortgage was duly recorded within ten days after its execution in the chattel mortgage record, the volume and page being specified, of Randolph county, Indiana, "the county in which said mortgaged property was situated at the time of the execution of said chattel mortgage."

In the first paragraph of the complaint no mention was made of the sale on execution, but it was alleged that, subsequent to the execution and recording of the mortgage, the goods passed from the possession of said Ludwick into the possession of the appellants, under a pretended claim of ownership therein. We state no more of the contents of the lengthy pleadings than we deem proper for the decision of the particular question presented in argument before us.

The case having been tried by the court below as an action in tort, the complaint is to be treated not as a complaint on the mortgage, and the mortgage can not be regarded as the foundation of the action within the meaning of the statute section 365 Burns 1894, section 362 Horner 1897, which provides: "When any pleading is founded on any written instrument or on an account, the original, or a copy thereof, must be filed with the pleading. * * * Such copy of a written instrument, when not copied in the pleadings, shall be taken as a part of the record." It is well settled by repeated decisions that an improper exhibit will not be considered in examining a pleading for the purpose of determining the question as to the sufficiency of the facts stated. Such exhibit can not supply any averment omitted in the pleading. Knight v. Flatrock, etc., Co., 45 Ind. 134; Wilson v. Vance, 55 Ind. 584; Whipple v. Shewalter, 91 Ind. 114; Conwell v. Conwell, 100 Ind. 437; Huseman v. Sims, 104 Ind. 317, 4 N.E. 42. However necessary a written instrument may be as evidence in support of a plaintiff's suit, it is not a proper exhibit if the action be not founded on the instrument. Treadway v. Cobb, 18 Ind. 36; Rausch v. Trustees, etc., 107 Ind. 1, 8 N.E. 25; Barrett v. Johnson, 2 Ind.App. 25, 27 N.E. 983. In Ross v. Menefee, 125 Ind. 432, 25 N.E. 545, it was held that a complaint for the wrongful conversion of personal property, the plaintiff's right in...