Vulcan Iron Works Co. v. Electric Magnetic Gold Mining Co.

• Decision Date: 17 December 1912
• Docket Number: No. 7,519.,7,519.
• Citation: 54 Ind.App. 28,100 N.E. 307
• Parties: VULCAN IRON WORKS CO. v. ELECTRIC MAGNETIC GOLD MINING CO.
• Court: Indiana Appellate Court

54 Ind.App. 28

100 N.E. 307

VULCAN IRON WORKS CO.

v.ELECTRIC MAGNETIC GOLD MINING CO.

No. 7,519.

Appellate Court of Indiana, Division No. 2.

Dec. 17, 1912.

Appeal from Circuit Court, Morgan County; N. A. Whitaker, Special Judge.

On rehearing. Overruled.

For former opinion, see 99 N. E. 429.

LAIRY, J.

A rehearing is asked in this case upon the ground that the court erred in holding that an error of the trial court in overruling a demurrer to a defective complaint is not cause for reversal, where it appears affirmatively from the record that the error had been cured or was harmless. We are cited to a number of decisions of the Supreme Court holding that an error of this kind cannot be cured by subsequent proceedings in the case. Pennsylvania Co. v. Poor, 103 Ind. 553, 3 N. E. 253;Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N. E. 874;Belt R. Co. v. Mann, 107 Ind. 89, 7 N. E. 893;Ryan v. Hurley, 119 Ind. 115, 21 N. E. 463;Chapman v. Jones, 149 Ind. 434, 47 N. E. 1065, 49 N. E. 347;Ervin v. State, 150 Ind. 332, 48 N. E. 249;Friedersdorf v. Lacy, 173 Ind. 431, 90 N. E. 766. We were not unaware of these decisions when the original opinion in this case was rendered, but the Supreme Court seems to have departed from the rule announced in the cases cited. That court in a recent decision holds that the omission of a material averment from the complaint may be cured or rendered harmless by the evidence. Crawfordsville, etc., Co. v. Ramsey, 98 N. E. 177.

In the case last cited the court says: “It is finally contended that the complaint is insufficient, because it is not directly averred therein that the testator died the owner of any real estate, and it is averred that there is an acting administrator of the estate of Charles P. Ramsey; that consequently plaintiffs had no right to contest a will which alone disposed of personalty. Assuming, without deciding, that under the allegations of the complaint appellees would have no right to contest this will, unless Alexander F. Ramsey died the owner of the real estate, this court would not be warranted in reversing the judgment for the defect in question. The complaint alleges that by the terms of the will the defendants are given ‘the whole of the property of said Alexander F. Ramsey, real and personal, of the value of $400,000, to the exclusion of *** Charles Ramsey.’ Appellants contend that the above is merely a recital, and does not constitute an averment of ownership of real estate. In view of ...