Wadkins v. Hill

• Decision Date: 01 June 1886
• Citation: 7 N.E. 253,106 Ind. 543
• Parties: Wadkins and others v. Hill.
• Court: Indiana Supreme Court

106 Ind. 543

7 N.E. 253

Wadkins and others

v.Hill.

Supreme Court of Indiana.

June 1, 1886.

Appeal from Rush circuit court.

New & Jones, for appellants.

Smith & Henley and Cambirn & Newkirk, for appellee.

Elliott, J.

The complaint of the appellants alleged ownership of land, and prays that the title may be quieted. The first paragraph of the appellee's cross-complaint sets forth facts showing that an instrument executed by the appellants, although in form a deed, was in fact a mortgage, and asks that it may be foreclosed as a mortgage. There can be no doubt that the theory upon which this pleading is constructed, is that the instrument is a mortgage; and, unless it is good upon this theory, the court erred in overruling appellants' demurrer. It is settled law that a pleading must be good on the theory on which it assumes to be constructed, or it will fall before a demurrer. Chicago, etc., Co. v. Bills, 104 Ind. 13, S. C. 3 N. E. Rep. 611, and cases cited; Mescall v. Tully, 91 Ind. 96, and cases cited. The question, therefore, is whether the pleading is good as a cross-complaint to foreclose a mortgage.

A cross-complaint which attempts, as does the one before us, to state a cause of action entitling the party to affirmative relief, must be tried by substantially the same rules as a complaint. Conger v. Miller, 104 Ind. 192; S. C. 4 N. E. Rep. 300. The general rule respecting the filing of instruments which constitute the foundation of a cross-complaint or counter-claim is that they must be filed with the pleading as an exhibit, or made part of it by incorporation. Campbell v. Routt, 42 Ind. 410;Brown v. State, 44 Ind. 222. There is an exception to this general rule, for it has been held that, where the instrument is fully exhibited in the complaint, it may be referred to in the cross-complaint without again making it an exhibit. Pattison v. Vaughan, 40 Ind. 253;Sidener v. Davis, 69 Ind. 336;Crowder v. Reed, 80 Ind. 1,vide page 4; Cookerly v. Duncan, 87 Ind. 332;Gardner v. Fisher, Id. 369; Anderson v. Wilson, 100 Ind. 407. While we recognize this exception to the general rule, we cannot hold the counter-claim before us to be within the exception, for the reason that it does not refer to the deed set forth in the complaint as the one upon which it is founded. On the contrary, it assumes to proceed on a different instrument, and professes to make it an exhibit. The case is therefore within the rule declared in Campbell v. Routt, supra, which is distinctly...