Funk v. Davis

• Decision Date: 16 October 1885
• Docket Number: 11,741
• Citation: Funk v. Davis, 103 Ind. 281, 2 N.E. 739 (Ind. 1885)
• Parties: Funk v. Davis et al
• Court: Indiana Supreme Court

2 N.E. 739

103 Ind. 281

Funk v. Davis et al

No. 11,741

Supreme Court of Indiana

October 16, 1885

From the White Circuit Court.

Judgment is affirmed, with costs.

M. M Sill, T. F. Palmer and J. H. Wallace, for appellant.

W. E Uhl, for appellees.

OPINION

Mitchell, C. J.

So far as necessary to be stated, the facts disclosed in this record are as follows: By the second clause of the will of Isaac Davis, there was devised to William Dayton Funk the "northwest quarter of the northwest quarter of section twenty-seven (27), the north half of the southwest quarter of the northwest quarter of said section, and the south half of the northeast quarter of the southwest quarter of section twenty-two (22), all in township twenty-eight (28) north, of range three (3) west." The will bears date the 29th day of August, 1876. The testator died in 1878.

On the 20th day of August, 1879, William D. Funk commenced a proceeding in the White Circuit Court to correct an alleged mistake in the description of the land devised to him by the foregoing clause in the will.

It was averred in the complaint that, at the time the will was made, the testator was not the owner of the land described, lying in the northwest quarter of section twenty-seven, but that, instead, the land owned and intended to be described and devised to him, was the same description lying in the northeast quarter of the section mentioned; that by mistake the testator gave to the draftsman who prepared his will the words northwest when he meant northeast. The prayer of the complaint was that the mistake might be corrected, etc.

The record shows that, on the 6th day of November, 1879, an amended complaint was filed, setting up substantially the same facts, but making new parties, against whom process of the court was prayed. Some of the defendants disclaimed any interest in the controversy; others demurred to the complaint for want of sufficient facts, and still others, whose minority was suggested, answered in denial by a guardian ad litem. The demurrer to the complaint was overruled, to which ruling an exception was taken. Upon issues made the cause was submitted to the court, and on the 30th day of January, 1880, a finding was made and decree entered, correcting the alleged mistake, quieting the title and appointing a commissioner to convey as prayed in the complaint.

After the decree was entered, a motion for a new trial was made, overruled and excepted to, and this was followed by a motion in arrest, which was also overruled and excepted to.

On the 2d day of January, 1882, a complaint to review the foregoing proceedings and judgment, for error of law appearing therein, was filed in the same court. Some of the complainants are described in the caption of this complaint as adults, and others as minors, the minors suing by their next friend. All the pleadings and proceedings in the original case are set out except the original, which was superseded by an amended complaint.

The errors assigned in the complaint for review are, that the complaint did not state facts sufficient to constitute a cause of action; that a new trial ought to have been granted; that the motion in arrest of judgment should have been sustained, and that the court erred in overruling the same.

A demurrer was overruled to this complaint, and such further proceedings had thereon as that upon issues made the court found in favor of the infant plaintiffs and against those who were described as adults, and accordingly judgment was entered, over a motion for a new trial, reviewing and setting aside the original judgment as to the infants, and further adjudging that the adult plaintiffs take nothing by their proceeding.

Subsequently, a demurrer was sustained to the complaint in the original case, and, the plaintiff failing to plead further, it was adjudged that he take nothing by his action.

The first point of contention by counsel for the appellant is, that the complaint for review was not sufficient, because it did not set out with the transcript of the original proceedings a copy of the first complaint filed. The record shows that an amended complaint was filed. This superseded, as an amended pleading always does, the original, and it was, therefore, not necessary to set it out.

No more of the record of the case to be reviewed is required to accompany the complaint or bill for review than is necessary to present the question upon which error is predicated. Stevens v. City of Logansport, 76 Ind. 498.

We agree with counsel that a complaint for review which only questions one of several paragraphs of the complaint upon which the judgment sought to be reviewed rests, is not sufficient. But as the judgment here rests wholly on the amended complaint, the point is not well made.

It is argued...