Old v. Mohler

• Decision Date: 19 March 1890
• Docket Number: 14,073
• Parties: Old v. Mohler
• Court: Indiana Supreme Court

23 N.E. 967

122 Ind. 594

Old v. Mohler

No. 14,073

Supreme Court of Indiana

March 19, 1890

From the Miami Circuit Court.

Judgment reversed, with costs.

W. E Mowbray, for appellant.

J. M Brown and N. N. Antrim, for appellee.

Mitchell C. J. Coffey, J. dissents.

OPINION

Mitchell, C. J.

John H. Mohler sued James H. Old to recover damages for the breach of a covenant against encumbrances. He charged in his complaint that the defendant had sold and conveyed certain real estate to him by deed, containing full covenants of warranty, and that while he had assumed the payment of encumbrances on the land to a certain amount, there existed encumbrances to the amount of seventy-seven dollars which he had not assumed, but which he had been compelled to pay in order to protect his title. Judgment by default for the amount claimed in the complaint, with interest.

Old prosecutes this appeal, and makes the question that the complaint does not state facts sufficient to constitute a cause of action, in that neither the original nor a copy of the deed was exhibited with the complaint. The action is predicated upon a covenant against encumbrances supposed to have been contained in the deed. That instrument was, therefore, the foundation of the action, and it was essential that the original or a copy should have been filed with and made a part of the complaint. Craig v. Donovan, 63 Ind. 513; Wadkins v. Hill, 106 Ind. 543, 7 N.E. 253; Overly v. Tipton, 68 Ind. 410.

As was in effect said in Brown v. State, ex rel., 44 Ind. 222, the statute is imperative that the instrument, or a copy thereof, which constitutes the foundation of the action must be filed with the pleading, alleging that it is filed is not enough. It must, in fact, be filed, and if it is not the pleading is demurrable. Ashley v. Foreman, 85 Ind. 55, and cases cited; Montgomery v. Gorrell, 51 Ind. 309.

Where it is averred in a pleading that a copy of the instrument declared on is filed therewith and made part thereof, and an instrument corresponding with the one described in the pleading is found in the transcript in its appropriate place, the pleading will be held sufficient. Northwestern, etc., Ins. Co. v. Hazelett, 105 Ind. 212, 4 N.E. 582; Hill v. Mayo, 73 Ind. 357.

Where, however, as in the present case, no copy of the instrument appears in the record, the averment that a copy was filed will not make the pleading good as against a demurrer. These propositions are not seriously controverted, but it is contended that inasmuch as there was no demurrer to the complaint in the court below, the objection that no copy of the instrument sued on was filed is not available when made for the first time in this court, or by motion in arrest after verdict.

It is certainly true, as a general rule, that there is an "important and well defined distinction, resting upon sound and solid ground, between cases in which the attack is by demurrer and those in which it is by motion in arrest," or where the pleading is questioned for the first time in this court after a judgment in the court below. Parker v. Clayton, 72 Ind. 307; Lassiter v. Jackman, 88 Ind. 118; Owen School Tp. v. Hay, 107 Ind. 351, 8 N.E. 220; Eberhart v. Reister, 96 Ind. 478.

Section 658, R. S. 1881, provides, in substance, that no judgment shall be reversed for any defect in form, contained in the pleadings, etc., which by law might be amended by the court below, but such defects shall be deemed amended in the Supreme Court, and that no judgment shall be reversed where it shall appear to the court that the merits of the cause had been fairly tried and determined in the court below.

It has often been held that the effect of this section is to prevent a reversal on appeal because of the existence of defects in a complaint which would have rendered it insufficient as against a demurrer, but which may have been supplied by proof and cured by the verdict.

It is settled by many decisions that a complaint that is defective on account of the failure of the pleader to set out the original or a copy of a written instrument upon which the pleading is founded, will be cured by a verdict or finding. Westfall v. Stark, 24 Ind. 377; Scott v. Zartman, 61 Ind. 328; Owen School Tp. v. Hay, supra, and cases cited. Where, however, a fact or averment is entirely omitted which is essential to the right of action, as where in an action for a personal injury there is no averment that the plaintiff was free from fault, the defect will not be cured by a verdict. Eberhart v. Reister, supra; Mansur v. Streight, 103 Ind. 358, 3 N.E. 112; Peters v. Banta, 120 Ind. 416, 22 N.E. 95.

It will be presumed, to the extent that the plaintiff's cause of action was defectively or inaccurately stated, no fact essential to the cause of action being omitted, that the facts imperfectly stated which were necessary to support the action were proved at the trial, and the complaint will be considered as having been amended to correspond with the proof.

This rule has, however, no application to a case where judgment has been taken by default. One who takes a judgment by default, must on an appeal seasonably taken, be content to stand upon his complaint as he makes it, for in considering whether or not it is sufficient to support a judgment so taken the court can not assume that anything was proved beyond what was alleged in the complaint, nor can the complaint be considered as having been amended to meet the proof.

In the language of a standard author, "A default cures no defect in the declaration, which would not have been aided on a general de...