Peters v. Banta

• Decision Date: 20 September 1889
• Docket Number: 13,894
• Citation: 22 N.E. 95,120 Ind. 416
• Parties: Peters et al. v. Banta
• Court: Indiana Supreme Court

22 N.E. 95

120 Ind. 416

Peters et al. v. Banta

No. 13,894

Supreme Court of Indiana

September 20, 1889

Reported at: 120 Ind. 416 at 423.

From the Pulaski Circuit Court.

Judgment affirmed, with costs.

G. E Ross, for appellants.

D. P Baldwin, for appellee.

OPINION

Berkshire, J.

This case originated in the Cass Circuit Court, and the venue changed to the Pulaski Circuit Court. It is an action to recover the possession of real estate, the appellee being the plaintiff in the court below.

Catherine Peters and Margaret Ream filed cross-complaints, and there were several answers and replies filed by the parties.

The appellants Margaret Ream and Catherine Peters assign separate errors, and the said appellants, together with the appellant Abraham Peters, assign joint errors.

The following are the errors assigned by the appellant Ream:

1. The complaint does not state facts sufficient to constitute a good cause of action against her.

2. The court erred in overruling the demurrer of Margaret Ream to the second paragraph of the answer of Henry I. Banta to the cross-complaint of Margaret Ream.

3. The court erred in sustaining the demurrer to the sixth paragraph of the answer of Margaret Ream.

4. The court erred in overruling the demurrer of Margaret Ream to the third paragraph of the plaintiffs' reply.

5. The court erred in overruling the motion of Margaret Ream for a venire de novo.

6. The court erred in overruling the motion of Margaret Ream for a new trial.

7. The court erred in overruling the motion of Margaret Ream in arrest of judgment.

8. The court erred in overruling the motion of Margaret Ream for a judgment in her favor on the verdict on the issues formed on the complaint of Henry I. Banta.

9. The court erred in overruling the motion of Margaret Ream for a judgment in her favor upon the issues formed on her cross-complaint.

10. The court erred in sustaining the motion of the plaintiff for a judgment in his favor on the verdict, and in rendering judgment in favor of the plaintiff.

The errors alleged by this appellant present all the questions that are raised by the errors assigned by the appellants jointly; therefore we need not set those out in this opinion.

Of the errors assigned by the appellant Catherine Peters, the following present different questions than those raised by the errors assigned by the appellant Ream:

2. The court erred in sustaining the demurrer to the plea in abatement.

3. The court erred in sustaining the demurrer of Henry I. Banta to the cross-complaint of Catherine Peters.

The first and seventh specifications of error of the appellant Ream raise the question as to the sufficiency of the complaint after verdict.

The appellants rely with confidence on the case of Mansur v. Streight, 103 Ind. 358, 3 N.E. 112. The averments in the complaint in that case are very similar to the averments in the complaint under consideration, as originally filed, and had the complaint under consideration stood unaided by any future pleading when the motion in arrest was made, the authority referred to would rule our decision, and the judgment would have to be reversed. But before the trial the following supplemental complaint was filed:

"Pulaski Circuit Court, April term, 1887.

"Henry I. Banta vs. Catherine Peters, Abraham Peters et al.

"Supplemental complaint, making James McCombes party defendant. For supplemental complaint herein the plaintiff says that he is the owner of lots five and six, D. D Dykeman's first addition to Logansport, Cass county, Indiana; that he owns the same in fee simple, and is entitled to the possession of said real estate; that since the institution of this suit James McCombes has unlawfully entered into possession of said real estate, and now wrongfully and unlawfully detains possession thereof from this plaintiff, and has so detained possession from this plaintiff for thirty days last past to the plaintiff's damage of ten dollars. Wherefore plaintiff makes him a party to this suit, and asks a judgment against him for the possession of said realty, ten dollars, and costs, and other and proper relief in the premises."

We extract the following from the case of Farris v. Jones, 112 Ind. 498, 14 N.E. 484 (500): "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."

We copy the following from the case of Morey v. Ball, 90 Ind. 450, 455, with reference to the office of a supplemental complaint: "Such supplemental complaint does not supersede the original, but both stand and constitute the complaint. As such pleading only constitutes a part of the complaint a demurrer to it is unknown to our practice, and the court was authorized to disregard it. This is what was done, and in this no error was committed." See Derry v. Derry, 98 Ind. 319, where the case of Morey v. Ball, supra, as to the character and effect of a supplemental complaint, is cited with approval. But we copy further from the opinion of the learned judge in the case of Farris v. Jones, supra: "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. * * 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 a part of a paragraph of complaint. Here, the appellees did not demur until after the 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 as then constituted, and in holding the cause of action therein stated bad by piecemeal, by an unwarranted procedure unknown to our practice." See Musselman v. Manly, 42 Ind. 462; Davis v. Krug, 95 Ind. 1; Simmons v. Lindley, 108 Ind. 297, 9 N.E. 360.

Where the sufficiency of a cause of action is called in question by motion in arrest of judgment, or by error assigned in this court, if facts sufficient are alleged to bar another suit for the same cause of action, all other defects are cured by the verdict and the complaint will be regarded as sufficient to uphold the judgment. Colchen v. Ninde, ante, p. 88; Chapell v. Shuee, 117 Ind. 481, 20 N.E. 417; Sims v. Dame, 113 Ind. 127, 15 N.E. 217; Balliett v. Humphreys, 78 Ind. 388; Donellan v. Hardy, 57 Ind. 393.

After the supplemental complaint was filed, the complaint as a whole was clearly sufficient to withstand a motion in arrest of judgment, or an attack made upon it by the assignment of error in this court. We are not called upon to determine whether it would be sufficient as against a demurrer had one been filed.

It is contended, in argument by counsel for the appellants, that the court should have carried the demurrer of the appellee to the sixth paragraph of the appellant Ream's answer back, and sustained it to the complaint, and that, in effect, the demurrer to the answer was a demurrer to the complaint. Conceding, as a matter of argument, that the position of counsel is correct, he should have assigned an error in this court, thus presenting the question; no such error has been assigned.

We are of the opinion that the second paragraph of the answer of the appellees to the cross-complaint of the appellant Ream contains the substantial allegations required in an answer of former...