Simpson v. Fuller

• Decision Date: 22 December 1943
• Docket Number: 17172.
• Citation: Simpson v. Fuller, 114 Ind.App. 583, 51 N.E.2d 870 (Ind. App. 1943)
• Parties: SIMPSON et al. v. FULLER.
• Court: Indiana Appellate Court

51 N.E.2d 870

114 Ind.App. 583

SIMPSON et al. v. FULLER.

No. 17172.

Appellate Court of Indiana, in Banc.

December 22, 1943

Campbell & Campbell, of Anderson, for appellants.

Pence O'Neill & Diven, of Anderson, for appellee.

DOWELL Judge.

Appellants brought an action against appellee in the court below to recover the sum of $700 upon a conditional sale contract. The contract contained a cognovit clause as defined by the laws of this state.

Appellants first filed in the court below a simple complaint on account which was answered by appellee to which answer appellants replied. Later appellants filed a further pleading designated a second paragraph of complaint setting up therein the contract, which pleading was received and entertained without objection. To this second paragraph of complaint appellee addressed a demurrer for want of facts which was sustained by the trial court. Appellants, thereupon, amended this second paragraph of complaint by deleting the cognovit clause of the contract, whereupon appellee filed a motion to strike the amended paragraph from the record which motion was sustained by the trial court on March 1, 1943. Appellants, on March 29 1943, appeared and dismissed their first paragraph of complaint, refused to plead further and finding and judgment for appellee followed.

Appellants assign as error (a) the court erred in sustaining appellee's demurrer to the second paragraph of complaint (b) the court erred in sustaining appellee's motion to strike the amended second paragraph of complaint from the record, (c) the court erred in rendering judgment for appellee.

Appellants' third assignment presents no question. McGinnis v. Boyd, 1896, 144 Ind. 393, 42 N.E. 678.

Appellee insists that the second assignment, likewise, presents no question for the reason that same should have been presented by a bill of exceptions. We cannot agree with appellee. The rule which formerly required this mode of presentation was changed by Sections 2 and 3, Chap. 193, Acts 1903, Burns' 2-1069 and 2-3104, §§ 461, 462, Baldwin's 1934. See Crystal Ice Co. v. Morris, 1903, 160 Ind. 651, 67 N.E. 502.

Appellee urges also that the first assignment presents no question and in support of his contention asserts that appellants, having filed their amended second paragraph of complaint, the original pleading was taken out leaving no question for review upon it. This is the general rule as expressed in the case of Kimble v. Jolly, 1940, 217 Ind. 698, 30 N.E.2d 463, cited in appellee's brief. However, appellee, being the moving party in the court below on his motion to strike has estopped himself from asserting here that the original second paragraph of complaint is not before us for review. An amended complaint properly filed supersedes and takes out of the record the original, but when the amended complaint has been stricken out and rejected by the court at the instance of the defendant, as not having been entitled to be placed on file, the defendant is estopped from asserting that the motion was not realty well taken, but that the amended complaint was properly filed and therefore effectual to supersede, the original. Herrod et al. v. Smith et al., 1895, 12 Ind.App. 21, 38 N.E. 870.

An examination of the briefs discloses that appellee's demurrer to the second paragraph of complaint rested solely on the ground that the contract contained a cognovit clause and was, therefore void and unenforceable as being in violation of Section 1, Chap. 227, Acts 1927, Burns' Sec. 2-2906 and Section 1, Chap. 66, Acts 1927, Burns' Sec. 2-2904, §§ 398, 399, Baldwin's 1934.

Section 2-2906, Burns' (Sec. 398, Baldwin's), is a penal statute and should be construed as such. Under it instruments containing cognovit provisions are not declared void by express terms. The statute merely defines a misdemeanor and prescribes a penalty therefor. It must be construed strictly and cannot be extended or enlarged beyond its express provisions.

Nor does it appear that Section 2-2904, Burns' (Sec. 399 Baldwin's), is intended to make void entire contracts containing, among other provisions, cognovit clauses. It only is intended to make void contract provisions giving power of attorney with authority to...