44 Ind. App. 1 | Ind. Ct. App. | 1909
Appellee brought this action against appellants to recover damages on the bond of appellant Berkemeier, on which appellants Propes and Schmidt were sureties. It is alleged that the relators were damaged in their
The action was commenced in the Knox Circuit Court, and upon change of venue was taken to the Daviess Circuit Court, where an amended complaint was filed. To this amended complaint a demurrer for want of facts was overruled and the issues formed by general denial. A trial resulted in a verdict and judgment for appellee in the sum of $500.
Errors assigned are in overruling the demurrer to the amended complaint and appellants’ motion for a new trial.
The complaint is objected to (1) because no copy of the bond was filed with it; (2) because it states that defendant sold to Joseph Noelting large quantities of liquor (possibly more than five gallons, and if so, the sureties on the bond would not have been liable for a sale of more than five gallons) ; (3) because there is no averment in the amended complaint that defendant Berkemeier or his agents knew that Noelting was in a state of intoxication when the liquor was sold to him; (4) because it avers that Berkemeier was licensed to sell in less quantities than a quart at a time; and (5) because no law in this State authorized such a license, or required a bond therefor.
Section 350, supra, has been applied to avoid a reversal where, as in the case at bar, a demurrer has been overruled to a pleading founded upon a written instrument, the original or a copy thereof not being filed with the pleadings. Baker v. Pyatt (1886), 108 Ind. 61. In that case the court refused to reverse the judgment for error in overruling the demurrer, upon the ground that it appeared from the whole record that the merits of the cause had been found and determined. See, also, Lake Shore, etc., R. Co. v. Kurtz. (1894), 10 Ind. App. 60. In Baker v. Pyatt, supra, there was a special finding of facts from which the Supreme Court said that no harm had been done to the defendant by the plaintiff’s failure to file the original or a copy of the deed upon which the paragraph in question was based, as it appeared that such instrument was properly introduced in evidence.
In Miller v. Bottenberg, supra, a copy of the written instrument upon which the answer was based was not filed, and the court held the answer bad. But, in the course of the opinion the court, at page 315, said: “If the evidence was in the record, and from it we could see that the written contract, on which the third paragraph of the answer was. founded, had been properly read in evidence, and that it was a contract of the force and character ascribed to it in the answer, a very different question would be presented. We
It would be difficult to point out how, in any particular, the substantial rights of appellants were affected by the failure to attach mechanically or physically exhibit A to the amended complaint. Appellants were deprived of no right, nor denied any information in fact, by the failure to file the exhibit with the amended complaint. It thus affirmatively appears that they were not harmed by this omission. Blackburn v. Crowder (1889), 108 Ind. 238; Wagner v. Barden
Two instructions appear in the record as given by the
The second instructs that, in order to recover, relators must prove by a fair preponderance of the evidence that defendant Berkemeier or his agents sold Noelting intoxicating liquor while he was in a state of intoxication, which he drank while in such state, and which liquor so drank by him caused him to kill Herman Pepmeier, which killing resulted in his subsequent imprisonment as alleged, and that the relators by his imprisonment were injured in their means of support.
By instruction nine the jurors were informed that if they found from a preponderance of the evidence that the defendant Berkemeier or his agents sold and delivered to said Noelting intoxicating liquors while he was in a state of intoxication, that said Noelting then and there drank the same; and that said Berkemeier was at said time engaged in the sale of intoxicating liquors under a license issued to him by proper authorities, and that he had executed the bond in suit as al
Considered together, there was no error in these instructions.
We cannot say that the verdict is without support in the evidence. Judgment affirmed.