Thompson v. Recht

• Decision Date: 08 April 1902
• Citation: 158 Ind. 302,63 N.E. 569
• Parties: THOMPSON v. RECHT et al.
• Court: Indiana Supreme Court

158 Ind. 302

63 N.E. 569

THOMPSON

v.RECHT et al.

Supreme Court of Indiana.

April 8, 1902.

Appeal from superior court, Lake county; H. B. Tuthill, Judge.

Action by Tonnes M. Thompson against Solomon Recht and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Peter Crumpacker, for appellant.

MONKS, J.

This action was commenced by appellant against appellees before a justice of the peace on two bonds executed by the appellees in a proceeding in attachment brought by appellee Recht against appellant. Judgment was taken on said bonds before the justice of the peace, from which judgment appellees appealed to the court below, where the jury returned a verdict for appellees; and, over a motion for a new trial, the court rendered judgment against appellant. This appeal from said judgment was perfected before the taking effect of sections 1337f, 1337h, Burns' Rev. St. 1901 (Acts 1901, §§ 6, 8, p. 566).

During the progress of the trial the attachment bonds sued upon were offered in evidence, and excluded by the court on the ground that they were not a part of the complaint, because not attached thereto; that a contract sued upon cannot be made a part of a complaint by being filed with it, but such contract must be attached thereto before it becomes a part thereof. While it may be better practice, in order to prevent the loss of exhibits, to actually fasten them to the pleading of which they are a part, we do not think the failure to do so renders the pleading insufficient on demurrer, or makes them any the less a part of the pleading with which they are filed. The words of the statute do not require the written instrument upon which a pleading is founded, or a copy thereof, to be attached to such pleading. The word used is “filed.” “Whenever any pleading is founded on a written instrument or an account, the original or a copy thereof, must be filed with the pleading.” Section 365, Burns' Rev. St. 1901 (section 362, Rev. St. 1881; section 362, Horner's Rev. St. 1901). In Wilson v. Vance, 55 Ind. 584, the court, after quoting said section, said (page 588, 55 Ind.): “Thus, whenever a pleading is founded on a written instrument, the copy filed with the pleading, though not copied in the pleading, becomes a part of the pleading, because it becomes a part of the record.” In Reed v. Broadbelt, 68 Ind. 91, 92, this court said: “When, as in this case, reference is made to the copy of the note sued on as ‘filed herewith,’ or in equivalent words, and a copy of a note similar to the one described in the complaint was actually filed with the complaint, the copy of the note thus filed is sufficiently identified, and in that respect the complaint is sufficient. Mercer v. Herbert, 41 Ind. 459;Friddle v. Crane, 68 Ind. 583, 584, and cases cited.” See, also, Stafford v. Davidson, 47 Ind. 319-321, and cases cited; Brown v. State, 44 Ind. 222;Hiatt v. Goblt, 18 Ind. 494;Whitworth v. Malcomb, 82 Ind. 454;Insurance Co. v. Hazelett, 105 Ind. 212-214...