Hill v. Mayo

73 Ind. 357 | Ind. | 1881

Franklin, C.

— Mayo sued Hill upon a promissory note •executed by Hill to Mayo & Shalter, and endorsed by Mayo & Shalter to Mayo.

The defendant filed a demurrer to the,complaint, assigning for cause that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled, .and judgment given on demurrer for the plaintiff.

In this court the only error assigned in the proceedings of the court below is the overruling of the demurrer. The complaint is in the usual form upon a promissory note, and .alleges that the note and endorsement were filed marked •“Exhibit. B,” and made a part of the complaint. The record nowhere shows whether either the note or endorsement was filed with the complaint or marked “Exhibit B.” Immediately following the complaint in the record, there appears a copy of a note and endorsement the same as those described in the complaint.

The statute provides that, “When any pleading is founded ■on a written instrument, or on account, the original or a copy "thereof, must be filed with the pleading.” 2G.&H., p. 104.

In the case of Brown v. The State, ex rel., 44 Ind. 222, the following language is used: “The statute is imperative that the instrument, or a copy of it, must be filed with the pleading ; alleging that it is filed is not enough. It must be in. fact filed ; and if not, the pleading is demurrable.” And quite a number of decisions of this court are referred to in support: thereof. In the case of The Peoria M. & F. Ins. Co. v. Walser, 22 Ind. 73, Judge Perkins, in delivering the opinion, of the court, uses the following language : “It is further settled that, in order that the court may know that the written instrument is filed with the pleading, as constituting the-foundation of the particular action, it must be identified by-reference to it, and making it an exhibit in that pleading.”' In the case of Brown v. The State, ex rel., supra, neither the bond nor a copy was filed with the complaint, i The opinion in The Peoria F. & M. Ins. Co. v. Walser,. supra, appears to be based upon the idea that neither the original nor a copy of the policy sued on was filed with the-complaint, without stating what the record showed upon that subject. In this case the record shows that the complaint alleged that the note and endorsement were filed with the-complaint, and that a copy of the note and endorsement immediately follows the complaint in the record. The clerk is. presumed to have discharged his duty, and copying the. Rote and endorsement in connection with the complaint isprima facie evidence that the note and endorsement were filed with the complaint. Reed v. Broadbelt, 68 Ind. 91; Friddle v. Crane, 68 Ind. 583. We see no error in overruling-the demurrer to the complaint.

Per Curiam.'

— It is therefore ordered, upon the foregoing-opinion, that the judgment below be, and is hereby, in all things affirmed, at costs of appellant.