57 Ind. App. 348 | Ind. Ct. App. | 1914
The fact that the first ruling on the demurrer was in appellant’s favor and that notwithstanding such ruling he filed an amended complaint would indicate that he concluded he could not obtain the relief he desired on such complaint, or at least, that for some reason he was not satisfied to go to trial on his original complaint. The form of the assignment of errors is peculiar in that it does not refer to either the sustaining or overruling of the demurrers, but to the ruling of the court in favor of appellees on their demurrer to the “complaint and holding appellant was not entitled to the relief therein claimed”. The latter part of the specification of error indicates that appellant in making the assignment sought to present some question other than the ruling against him on -the demurrer to the amended complaint. The record contains both the original and amended complaints and the demurrers and rulings thereon. "While the effect of filing an amended complaint is to take the original out of the case, yet considering the form of the assignment
Our examination of the eases leads to the conclusion that
The assignment of errors has been held to be the complaint on appeal. To it the court of appellate jurisdiction must look to determine what questions, if any, are presented for its consideration and decision. Preliminary to the consideration of any questions relating to the merits of the appeal, it is the duty of the court first to pass upon the facts from which its own jurisdiction 'or want of jurisdiction to decide the case upon its merits, is determined. If from such examination the court finds that under the statute and rules of the court no question affecting the validity of the judgment of the lower court is duly presented, the appeal should be dismissed. The presumption is in favor of the regularity of the proceedings, and of the validity of the judgment below. This presumption is conclusive until error is pointed out in accordance with the requirements of our appellate procedure.
Where the appellate tribunal finds that no question affecting the validity of the judgment of the lower court is duly presented, the validity of such judgment, in legal contemplation, has not been challenged, notwithstanding an attempt has been made so to do. The judgment remains effective and in the same situation it would have been, had no assignment of errors, of any kind, been filed within the time allowed by law to perfect an appeal. As dealing with questions bearing some analogy to the question here decided, we cite the following: Ewbank’s Manual §124 et seq.j Elliott, App. Proc. §299, et seq.j Estate of Thomas v. Service (1883), 90 Ind. 128; Smythe v. Boswell (1888), 117 Ind. 365, 20 N. E. 263; Lawrence v. Wood (1890), 122 Ind. 452, 24 N. E.
Note. — Reported in 107 N. E. 35. As to how far amendments are allowable to alter or vary the cause of action, see 34 Am. Dec. 158; 51 Am. St. 414. See, also, under (1) 2 Cyc. 989; (2) 2 Cyc. 1000; (3) 29 Cyc. 761; (4) 29 Cyc. 757 ; 2 Cyc. 1000; (5) 11 Cyc. 167; (6) 3 Cyc. 185.