State ex rel. Goodman v. Halter

• Decision Date: 13 January 1898
• Citation: 49 N.E. 7,149 Ind. 292
• Parties: STATE ex rel. GOODMAN, Pros. Atty., v. HALTER.
• Court: Indiana Supreme Court

149 Ind. 292

49 N.E. 7

STATE ex rel.GOODMAN, Pros. Atty.,

v.HALTER.

Supreme Court of Indiana.

Jan. 13, 1898.

Petition for rehearing. Denied.John T. Goodman, Cullop & Kessinger, and Wm. A. Ketcham, Atty. Gen., for appellant. Cauthorn, Dailey & Cauthorn and Smith & Korbly, for appellee.

PER CURIAM.

It is urged by counsel for appellee that the question of the taxation of tax certificates was not in the record, and was not before the court for decision, because the transcript shows that that part of the amended complaint was stricken out in the court below. The clerk has copied into the transcript an entry showing that a motion was made to strike out a part of the amended complaint, and that the same was sustained. Said motion and the ruling of the court thereon are not made a part of the record by a bill of exceptions, and it has been uniformly held by this court that such motions, and the ruling of the court thereon, form no part of the record, unless brought in by a bill of exceptions. Dudley v. Pigg (Ind. Sup.) 48 N. E. 642, and cases cited. Such motion, and the ruling of the court thereon, although copied into the record by the clerk, form no part thereof, and cannot be considered by this court. Dudley v. Pigg, supra, and cases cited. The record does not show, therefore, that any part of the amended complaint was stricken out. The record not showing that any part of the amended complaint was stricken out, we are required to consider the same as copied into the record, and have no power to disregard the part pertaining to “tax certificates,” any more than any other part thereof. Dudley v. Pigg, supra. It is true, as contended by appellee, that the rule in this state is that a demurrer to an answer will search the record, and that a bad answer is good enough for a bad complaint; but in this case, as was said in the original opinion, the first paragraph of answer was not an answer to the whole complaint, which is in one paragraph, but only to a part of it; and in such case the demurrer cannot be carried back and sustained to the complaint. Tracewell v. Peacock, 55 Ind. 572. The rule urged, therefore, does not apply to this case. The sufficiency of the complaint was not therefore challenged by the demurrer to the first paragraph of answer, nor is it challenged by any assignment of cross errors.

Some questions are argued in the briefs for a rehearing that were not discussed in the original briefs. It is the settled rule that questions...