Sprague v. Pritchard

• Court: Indiana Supreme Court
• Writing for the Court: Mitchell, J.
• Citation: Sprague v. Pritchard, 108 Ind. 491, 9 N. E. 416 (Ind. 1886)
• Decision Date: 15 December 1886
• Docket Number: 12,737
• Parties: Sprague v. Pritchard

9 N.E. 416

108 Ind. 491

Sprague v. Pritchard

No. 12,737

Supreme Court of Indiana

December 15, 1886

From the Marion Superior Court.

Judgment affirmed with costs.

P. W Bartholomew, for appellant.

C. S Denny, for appellee.

OPINION

Mitchell, J.

This was a suit by James A. Pritchard to recover for professional services, alleged to have been rendered for, and at the request of, Mrs. Sprague.

The complaint is in two paragraphs. The first is an ordinary action for services rendered.

The second paragraph is a complaint to enforce a specific lien for the same services mentioned in the first count, against certain described real estate, which it is alleged the appellant, a married woman, owned in her own right, and in securing the title to which the services were alleged to have been rendered by the appellee in the year 1880.

Issue was formed by an answer in denial. Finding and decree enforcing a specific lien for $ 400 against the land described, in favor of appellee.

The appellant at the proper time made a motion to strike out portions of the second paragraph of the complaint. This motion was overruled.

The written motion, which appears in the record, asks the court to strike out all that part of the second paragraph, "commencing with the beginning of line thirty and including said line" down to and including line sixty-two. As the complaint appears in the transcript, there are no lines which correspond with those above mentioned. We are, therefore, without the means of identifying the part of the complaint to which the motion was intended to apply. City of Crawfordsville v. Barr, 45 Ind. 258; Berkshire v. Young, 45 Ind. 461.

Where a motion to strike out is so framed that when it is copied into the transcript, that part of the pleading to which it was intended to apply can not be identified, manifestly it presents no question for consideration here; besides, "This court has never reversed a judgment because of the refusal of the lower court to strike out of a pleading immaterial matter or surplusage." Gill v. State, ex rel., 72 Ind. 266.

At the proper time the court directed a jury to be called to try the issue joined on the first paragraph of the complaint. The court, at the same time, announced that the issue on the second paragraph would be tried by the court, with the advice of the jury, by way of interrogatories and answers thereafter to be submitted. The trial was proceeded with, without objection, until after the jury returned...