Farrington v. Hawkins

24 Ind. 253 | Ind. | 1865

Ray, J.

This action was brought by the appellee against the appellant.

The original complaint contained two paragraphs. The first was for the taking and converting to appellant’s own use of four hundred and fifty bushels of corn; the second paragraph charged the conversion of certain other two hundred and fifty bushels of corn, all the property of appellee. After the service of the summons, the appellee filed a third paragraph, charging that since the commencement of the suit, the appellant had taken and converted an additional amount of corn. This third paragraph is called a supplemental complaint. The appellant filed an answer to the first and second paragraphs, and a demurrer to the third. The ground of the demurrer was that facts sufficient were not stated in the third paragraph to constitute a cause of action. The court properly overruled the demurrer. The plaintiff had a right, at any time before his complaint was answered, to amend his pleadings, and to file additional paragraphs. That he styled the additional paragraph a supplemental complaint is immaterial. Our practice deals with the facts stated in the plea; if those facts give a cause of action, it is sufficient, though the pleading may be, as in this case, inaptly named. The paragraph was not a supplemental complaint, but was for the conversion of a distinct and separate quantity of corn from that referred to in the first and second paragraphs of the complaint. Upon the filing of this additional paragraph, the appellant could have moved the court to strike it out, the cause of action stated therein having accrued subsequent to the service of the summons; or, appearing thereto, have asked, and was entitled to receive, a continuance of the cause. This right he waived by his demurrer.

Linsday and Lewis, for appellant. 'H. A. Brouse, for appellee.

The judgment is affirmed, with 3 per cent, damages, and costs.