Sch. Town of Monticello v. Grant

• Decision Date: 26 May 1885
• Citation: 1 N.E. 302,104 Ind. 168
• Parties: School Town of Monticello v. Grant and others.
• Court: Indiana Supreme Court

104 Ind. 168

1 N.E. 302

School Town of Monticello

v.Grant and others.¹

Supreme Court of Indiana.

Filed May 26, 1885.

Appeal from Cass circuit court.

Reynolds & Sellers and M. Winfield, for appellant.

S. T. McConnell, for appellees.

Niblack, J.

The proceedings which resulted in this appeal were commenced in the White circuit court on the twenty-second day of April, 1876, by George H. Grant, Turner W. Haunes, and William F. Spencer, partners, constituting the firm of George H. Grant & Co., against “The Town of Monticello, a corporation for school purposes.” The summons was served on the president of the board of trustees, and the clerk and treasurer of the town of Monticello, and on Hannawalt, Bushnell, and Sims, school trustees of said town. The action was for school desks and school furniture used in a school building, and the venue was changed to the Carroll circuit court, where, on the third day of May, 1877, the plaintiffs, by leave of court, filed an amended complaint, substantially the same as the complaint first filed, except that it described the defendant as “The ‘School’ Town of Monticello.”

The defendant answered- First, in denial; second, payment; third, the six-years statute of limitations. Issues were formed upon the second and third paragraphs of answer, and there was a verdict and judgment for the defendant. That judgment was reversed by this court. Grant v. School Town of Monticello, 71 Ind. 58. After the cause was remanded, the venue was again changed to the Cass circuit court, where some additional paragraphs of answer were filed, upon which issues were joined, and where a second trial resulted in a verdict and judgment for the plaintiffs, and in the prosecution of this appeal.

The questions discussed by counsel are such only as were reserved upon the appellant's motion for a new trial. This court held at the former hearing that upon the evidence then before it the demand in suit was not barred by the statute of limitations, and, so far as that question is now involved, the evidence in the record before us is substantially the same as it was at that hearing. It was then, as it still is, a settled rule of judicial construction that the pleading in the cause, as well as the other papers constituting the basis of the action, are before the court without being read in evidence. New Albany & V. P. R. Co. v. Stallcup, 62 Ind. 345;Boots v. Canine, 94 Ind. 408. It may therefore be accepted as the law of this case that the demand was not barred by the statute of limitations when the action was commenced.

When this case was here before, the present appellant made the point that the amended complaint, describing the defendant as the “school” town of Monticello, was the substitution of a new and materially different complaint, as compared with the one first filed, and was hence the commencement of a new action against another defendant more than six years after the cause of action had accrued; but this court made no distinct ruling upon that particular point as it was then presented, and, because of that seeming omission, the same point is now renewed and urged with much earnestness and elaboration; citing Miller's Heirs v. McIntire, 1 McLean, 85;Lago v. Neilson, 10 Ind. 183;Jones v. Porter, 23 Ind. 66;Hawthorn v. State, 57 Ind. 286; and Floyd v. Floyd, 90 Ind. 130. These authorities have reference to cases in which new parties are brought before the court by amendment, and not to cases in which there is an amended description of a defendant already before the court, whether by the due service of process or otherwise. The general rule is that an amendment to a complaint has relation to the time at which the complaint was filed. It is only, so far as we have observed, where the amendment sets up some claim or title not previously asserted, and involving the statute of limitations, that a different rule has been applied.

It was plainly inferable from the facts averred in the original complaint, as well as from the persons upon whom process was served, that the appellant was sued as a school corporation. The amendment, therefore, which more formally described the appellant as a school corporation, did not in any manner change the nature of the action, and clearly had relation to the time at which the first complaint was filed. Such an amendment was authorized and inferentially recognized, as a merely formal proceeding by section 99, Code 1852, which...