Indiana Mut. Bldg. & Loan Ass'n v. Plank

• Decision Date: 21 February 1899
• Citation: 152 Ind. 197,52 N.E. 991
• Parties: INDIANA MUT. BUILDING & LOAN ASS'N v. PLANK et al.
• Court: Indiana Supreme Court

152 Ind. 197

52 N.E. 991

INDIANA MUT. BUILDING & LOAN ASS'N

v.PLANK et al.

Supreme Court of Indiana.

Feb. 21, 1899.

Appeal from circuit court, Fulton county; A. C. Capron, Judge.

Action by the Indiana Mutual Building & Loan Association against Mary B. Plank and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

McBride & Denny, Essick & Mitzler, and Elliott & Elliott, for appellant. Holman & Stephenson, for appellees.

MONKS, C. J.

This action was brought by appellant against appellees to recover judgment upon a note executed by them, to foreclose a mortgage executed by appellees to secure said note, and to enforce a lien on 11 shares of stock of appellant corporation, pledged as collateral security to secure said note. A demurrer for want of facts was sustained to the complaint, and, appellant refusing to plead further, judgment was rendered in favor of appellees. The ruling of the court upon said demurrer is the only error assigned. It is not claimed by appellees that the complaint, when considered in connection with the note and mortgage filed therewith as exhibits, is insufficient. They insist, however, that the provisions of said certificate of stock filed as an exhibit control the allegations in the complaint, and that, when said certificate is considered in connection with the other exhibits, as a part of the complaint, it is not sufficient, and the court did not err in sustaining the demurrer thereto. It is true, as insisted by appellees, that, when the allegations of a pleading vary from the provisions of the instrument which is the foundation of the action, the provisions of said instrument control, and such allegations will be disregarded. Deposit Co. v. Lackey, 149 Ind. 10, 14, 48 N. E. 254, and cases cited. If, however, an exhibit is filed with a pleading which is not the foundation thereof, the same cannot be considered in determining the sufficiency of such pleading, but must be disregarded. Dudley v. Pigg, 149 Ind. 363, 364, 48 N. E. 642, and cases cited; Fitch v. Byall, 149 Ind. 554, 557, 49 N. E. 455;Gum-Elastic Roofing Co. v. Mexico Pub. Co., 140 Ind. 158-161, 39 N. E. 443, and cases cited; Newman v. Association, 97 Ind. 295-297, and cases cited. Copies of the note and mortgage sued upon were filed with the complaint as exhibits. It is provided in said notes that certificate No. 1,474, for 11 shares of the capital stock in appellant corporation, held and owned by appellee ...