Erhardt v. Pfeiffer
29 Ind. App. 570
Ind. Ct. App.
1902
Check Treatment
Henley, P. J.

-Appellee commenced this action in the trial court by a complaint in one paragraph upon the promissory note. The complaint is brief and in the following words: “Comes now William H. Pfeiffer the abovo named plaintiff and complains of George Erhardt, Jacob W. Miller, Charles Erhardt, and Chester Holder defendants hereto, and says: That on the 28th day of Juno, 1898, by their promissory note, a copy of which is filed herewith, and made a part of this complaint, marked A, promised to pay Chester Holder the sum of $300, with eight per cent, interest thereon from date until paid, and attorney’s fees, which sum of $300 and the interest thereon as aforesaid remains due and unpaid, with attorney’s fees thereon, which attorney’s fees amount to7 and is reasonably *571■worth $40, which said note, before the maturity thereof, was duly transferred and sold to plaintiff for a good and valuable consideration, and indorsed to him, a copy of which is filed herewith and made a part of this complaint. Wherefore plaintiff demands judgment against said defendant for $400 and other relief.” It appears from the record that no copy of the note or of the assignment of the note to the appellee was filed with the complaint. Appellant was defaulted, and judgment rendered against him.

One of the errors assigned in this court is that the complaint does not state facts sufficient to constitute a cause of action. Counsel for appellant contends that the judgment of the trial court must be reversed because of the insufficiency of the complaint, in this: that the complaint fails to set out the original or a copy of the written instrument upon which the pleading is founded. The rule of pleading stated by counsel is unquestionably correct and has been so uniformly held in all cases where the pleading was tested in the first instance by demurrer. It has often been held, however, that a complaint, that is defective on account of the failure of the pleader to set out the original or a copy of the written instrument upon which the pleading is founded, will be cured by verdict or finding. Owen School Tp. v. Hay, 107 Ind. 351; Old v. Mohler, 122 Ind. 594. It has also been held by our Supreme Court that where, as in the case.under consideration, no copy of the instrument appears in the record, the averment that the copy was filed will not make the pleading good as against demurrer. Old v. Mohler, supra. It has also beeii held that a judgment by default does not cure a defective complaint in any respect, and that upon appeal the complaint stands in exactly the same position as if attacked in the trial court by demurrer.

In the case of Old v. Mohler, supra, the Supreme Court said: “It will be presumed, to the extent that the plaintiff’s cause of action was defectively or inaccurately stated, *572no fact essential to the cause of action being omitted, that the facts imperfectly stated which were necessary to support the action were proved at the trial, and the complaint will be considered as having been amended to correspond with the proof. This rule has, however, no application to a case where judgment has been taken by default. One who takes a judgment by default, must on an appeal seasonably taken, be content to stand upon his complaint as he makes it, for in considering whether or not it is sufficient to support a judgment so taken the court can not assume that anything was proved beyond what was alleged in the complaint, nor can the complaint be considered as having been amended to meet the proof. In the language of a standard author, ‘A default cures no defect in the declaration, which would not have been aided, on a general demurrer. Eor no fact can be presumed to have been proved, when no trial has been had, apd no proof exhibited. And, therefore, a motion in arrest of judgment, for the insufficiency of the declaration, after a default, operates precisely as a general demurrer to the declaration would have operated.’ Gould Pleading All.”

The question raised by counsel for appellant seems to have been settled by our courts in his favor. The judgment is therefore reversed.