Ellis v. The City of Indianapolis
| Decision Date | 25 May 1897 |
| Docket Number | 17,923 |
| Citation | 47 N.E. 218,148 Ind. 70 |
| Parties | Ellis v. The City of Indianapolis et al |
| Court | Indiana Supreme Court |
From the Marion Circuit Court.
Affirmed.
W. V Rooker and W. D. Bynum, for appellant.
A. G Smith and C. A. Korbly, for appellees.
On September 11, 1895, the appellant, "for and on behalf of himself and all other citizens of Washington township, in Marion county, in the State of Indiana, said citizens being too numerous to join as plaintiffs herein," filed his complaint to enjoin the appellees, being the city of Indianapolis, its board of public safety and the Indiana State Board of Agriculture, from appointing peace officers for the State fair grounds, situated in said Washington township and adjoining the said city of Indianapolis.
A temporary restraining order seems to have been issued by the court on the filing of the complaint. On September 12, 1895, the appellees filed their motion to dissolve the restraining order; which motion, on September 14, 1895, was sustained, and the restraining order was dissolved and set aside.
On September 28, 1895, the several appellees filed their separate demurrers to the complaint; which demurrers, on October 14, 1895, were sustained by the court.
On November 19, 1895, the appellant filed what is called "his amended complaint," but which is the original complaint refiled. On the same day he filed a supplemental complaint. In the supplemental complaint it is alleged, that since the filing of the original complaint the Indiana State Board of Agriculture had given an exhibition under the name of the "Indiana State Fair," on the said State fair grounds; that numerous persons, including children, youths and women, had attended the fair; that unlawful and immoral exhibitions were permitted upon said grounds; that the police officers appointed by appellees failed to prevent or repress such unlawful exhibitions; that the said state board threatened to repeat said State fair in September, 1896, and to permit the repeating of said unlawful and degrading exhibitions, and again to send police officers to said grounds in said township, unless enjoined from so doing.
On January 6, 1896, the appellees demurred to the supplemental complaint, and on January 7, 1896, this demurrer was sustained.
On March 10, 1896, the appellee, State Board of Agriculture, moved the court "to render final judgment for the defendants herein on the demurrer to the supplemental complaint;" and under date of March 12, 1896, the following final entry is shown in the record:
etc.
The recital in this final entry, to the effect that the court had theretofore sustained the appellees' demurrer to "the amended and supplemental complaint," is quite unsatisfactory. A reference to the record as originally filed, and also as completed by certiorari, fails to show any demurrer to an amended complaint. Demurrers to the original complaint were sustained on October 14, 1895, and a demurrer to the supplemental complaint was sustained on January 7, 1896. No other demurrers are shown in the record. The recital as to a demurrer to the amended complaint must therefore be an error of the clerk in making up the final entry.
The record is irregular in other respects. What is called the "amended complaint," filed November 19, 1895, is not an amended complaint. It is the original complaint refiled, word for word. The paper so filed forms no part of the record, as apart and distinct from the original complaint. The court had sustained a demurrer to the original complaint, and as no appeal was taken from that ruling, the original pleading, whether called a complaint or an...
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