The Vulcan Iron Works Company v. The Electro Magnetic Gold Mining Company

• Decision Date: 10 October 1912
• Docket Number: 7,519
• Citation: 99 N.E. 429,54 Ind.App. 28
• Parties: THE VULCAN IRON WORKS COMPANY v. THE ELECTRO MAGNETIC GOLD MINING COMPANY
• Court: Indiana Appellate Court

99 N.E. 429

54 Ind.App. 28

THE VULCAN IRON WORKS COMPANY v. THE ELECTRO MAGNETIC GOLD MINING COMPANY

No. 7,519

Court of Appeals of Indiana

October 10, 1912

Rehearing denied December 17, 1912, Reported at: 54 Ind.App 28 at 35.

Transfer denied June 25, 1913.

From Morgan Circuit Court; Nathan A. Whitaker, Special Judge.

Action by The Electro Magnetic Gold Mining Company against The Vulcan Iron Works Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

S. C. Kivett, for appellant.

George W. Grubbs and James W. Harper, for appellee.

LAIRY, J. Adams, C. J., Hottel, P. J., Ibach, J., and Felt, J., concur. Myers, J., concurs in result.

OPINION

LAIRY, J.

This was an action based upon a written contract for a breach of warranty in the sale of a steam shovel. The case was tried upon an amended complaint to which the contract which is the foundation of the action was not made an exhibit. The amended complaint states the contents of the contract in general terms and refers to it as being filed with the original complaint marked "Exhibit A"; but, as the original complaint was superseded by the filing of the amended complaint and was thereby taken out of the record, a reference to an exhibit filed with such original complaint does not aid the amended complaint. We must hold, therefore, that the contract which forms the foundation of the action is not filed with the amended complaint upon which the case was tried. Western Assur. Co. v. McCarty (1897), 18 Ind.App. 449, 48 N.E. 265; Western Union Tel. Co. v. State (1896), 146 Ind. 54, 44 N.E. 793.

A demurrer filed by appellant to this amended complaint was overruled and this action of the trial court is assigned as error. Where a complaint is founded upon a written contract, such contract must be set out in the body of the complaint or filed as an exhibit and properly identified. A complaint defective in this particular is insufficient to withstand a demurrer. § 368 Burns 1908, § 362 R. S. 1881; Elwood, etc., Oil Co. v. Glaspy (1906), 38 Ind.App. 634, 77 N.E. 956; Brown v. State, ex rel. (1873), 44 Ind. 222. While the amended complaint would have been sufficient if questioned for the first time after verdict, by a motion in arrest of judgment, or by assignment of error in this court, it was clearly insufficient as against a demurrer and the court erred in holding it to be sufficient.

Appellee practically concedes this error, but it insists that the judgment should not be reversed on this account, for the reason that the subsequent proceedings as disclosed by the record show that this error was not prejudicial to appellant. Our attention is called to the various provisions of the statutes of this State providing that judgments shall not be reversed for error of the trial court in cases where it is apparent from the record that the merits of the cause have been fairly determined, and these statutes are invoked to prevent a reversal in this case. There are three sections bearing upon this question. Section 350 Burns 1908, § 345 R. S. 1881, provides: "But no objection taken by demurrer, and overruled, shall be sufficient to reverse the judgment, if it appear from the whole record that the merits of the cause have been fairly determined." Section 407 Burns 1908, § 398 R. S. 1881, is as follows: "The court must, in every stage of the action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment can be reversed or affected by reason of such error or defect." Section 700 Burns 1908, § 658 R. S. 1881, provides: "No judgment shall be stayed or reversed, in whole or in part, by the supreme court, for any defect in form, variance, or imperfections contained in the record, pleadings, process, entries, returns, or other proceedings therein, which by law might be amended by the court below, but such defects shall be deemed to be amended in the supreme court; nor shall any judgment be stayed or reversed, in whole or in part, where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below." When a pleading is held sufficient by the court as against a demurrer, the party demurring may stand upon his demurrer and appeal, or he may plead to the merits. If he takes the former course, the only question presented on appeal is the sufficiency of the pleading to which the demurrer was directed, and, in case such pleading is held insufficient on appeal, the judgment will be reversed. If he takes the second course, pleads to the merits and proceeds to final judgment, the objection taken by demurrer, may or may not be available to reverse on appeal. If the record does not show affirmatively that such ruling was harmless to the adverse party, the case should be reversed; but if the whole record shows that the case has been fairly determined on its merits, and that the erroneous ruling on demurrer was not prejudicial, the statutes quoted require that the judgment should be affirmed, regardless of such error.

In this case the record discloses, that after the complaint was held sufficient, the defendant filed an answer and also a cross-complaint based upon the same contract and that issues were formed upon this cross-complaint. Upon the trial of the issues thus formed, the plaintiff introduced and read in evidence the contract upon which the complaint is based and which should have been made an exhibit thereto. The defendant did not object to this evidence upon the ground that the contract was not filed or that it was not made an exhibit to the complaint. If it had made such objection undoubtedly the court would have permitted plaintiff to amend its complaint by making the contract an exhibit. Appellant, however, made no objection to the proffered evidence but allowed it to go to the jury together with the other evidence offered in the case, hoping no doubt, for a verdict in its favor on the merits. Disappointed in this, it now seeks a reversal upon the ground that the complaint was insufficient to withstand a demurrer for the reason that the contract thus introduced in evidence and considered by the jury was not filed as an exhibit to the amended complaint. In the opinion of the court, this is exactly the kind of a case the statutes we have quoted were intended to meet. In the case of Baker v. Pyatt (1886), 108 Ind. 61, 63, 9 N.E. 112, the Supreme Court held that a judgment would not be reversed because the plaintiff failed to file a copy of the deed sought to be reformed, with his complaint seeking such reformation. The court said: "After a careful examination, we have concluded that the merits of the cause have been fairly determined, and...