Farris v. Jones
| Decision Date | 06 December 1887 |
| Docket Number | 14,022 |
| Citation | 14 N.E. 484,112 Ind. 498 |
| Parties | Farris v. Jones et al |
| Court | Indiana Supreme Court |
From the Martin Circuit Court.
The judgment is reversed, with costs, and the cause is remanded. Appellees' motions to strike out parts of the record, and to dissolve the restraining order are denied, with costs, and the rule against appellees to show cause, is discharged, at their costs.
H McCormick, for appellant.
T. M Clarke, C. S. Dobbins, T. J. Brooks, S. M. Reeve, H. Q Houghton and J. T. Rogers, for appellees.
Howk J. Niblack, J., was absent when this cause was considered and decided.
This suit was commenced by appellant, Farris, as plaintiff, against the appellees, Jones, Chattin and Porter, the acting board of commissioners of Martin county, as defendants, on the 29th day of July, 1887. At the ensuing September term, 1887, of the court below, the parties appeared and appellant filed what is called his supplemental complaint herein. Thereafter, at the same term, appellees' demurrers to the original and supplemental complaints, for the alleged want of facts therein respectively, were severally sustained by the court. Thereupon, at the same term, with the leave of court first had, appellant filed the third paragraph of his complaint herein. Appellees' demurrer to this third paragraph of complaint, for the alleged insufficiency of the facts therein alleged to constitute a cause of action, was also sustained by the court. Appellant then declining to amend or plead further, it was adjudged by the court that he take nothing by his suit, and that appellees recover of him their costs expended herein.
From such judgment this appeal is prosecuted, and the appellant assigns here as errors the sustaining of the several demurrers to the several paragraphs of his complaint herein.
The record fails to show that appellant excepted at the time to the rulings of the court below in sustaining appellees' demurrers to the original complaint, or to what is called the supplemental complaint herein. Therefore it is claimed by appellees' counsel that no questions are saved in and presented by the record by the decisions of the court upon the demurrers to the original and supplemental complaint for the consideration of this court. In other words, counsel claim that, by reason of appellant's failure to except to such decisions, his original and supplemental complaints are practically, at least, out of the record of this cause, and form no proper part thereof, on his appeal from the judgment below to this court. Ordinarily, no doubt, the claims of appellees' counsel, in regard to the effect of appellant's failure to except at the time to the rulings of the court upon the demurrers to his original and supplemental complaints, would be correct, but, as applied to the record in this cause, we think their claims are incorrect and erroneous.
It is shown by such record that appellant filed his supplemental complaint on the 8th day of September, 1887, stating therein matters of fact which had occurred after the filing of his original complaint. Afterwards, on the 13th day of September, 1887, and not before, appellees filed their two demurrers herein, one to the original complaint and the other to the supplemental complaint, which demurrers were sustained by the court on the same day.
It is settled by our decisions, that as a supplemental complaint constitutes only a part of the original complaint, after the filing of the former pleading, a demurrer will not lie to such supplemental complaint; and, if filed, it ought to be disregarded. Morey v. Ball, 90 Ind. 450; Derry v. Derry, 98 Ind. 319.
"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." Musselman v. Manly, 42 Ind. 462; Davis v. Krug, 95 Ind. 1; Simmons v. Lindley, 108 Ind. 297, 9 N.E. 360.
The rule of practice which forbids the filing of a demurrer to a supplemental complaint results from the general rule that, under our civil code, a demurrer will not lie to a part of a paragraph of complaint, or other pleading. Section 339, R. S. 1881; Reno v. Tyson, 24 Ind. 56.
Of course, there are exceptions to this general rule of practice, as, in cases of suits upon bonds, when several breaches have been assigned in a single paragraph of complaint, we have often held that the sufficiency of each breach may be tested by a separate demurrer. Colburn v. State, ex rel., 47 Ind. 310; Mustard v. Hoppess, 69 Ind. 324; Sheetz v. Longlois, 69 Ind. 491.
The case in hand does not fall within any of the exceptions to the general rule of practice that a demurrer will not lie to part of a paragraph of complaint. Here, the appellees did not demur until after appellant had filed his supplemental complaint herein, and it and the original complaint had become and were only one complaint. To the one complaint, as thus constituted, appellees did not demur, but instead thereof, as we have seen, they filed separate demurrers to the separate parts of such complaint for the alleged insufficiency of the facts therein to constitute a cause of action. The court below ought not, we think, to have entertained or ruled upon these separate demurrers to the separate parts of the one complaint, as then constituted, but ought rather to have rejected, or at least disregarded, such demurrers, as unknown to our practice under the civil code and to have required appellees to plead further. Certainly, the court erred in entertaining these separate demurrers to the separate parts of the complaint...
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