Appellee has filed a written motion to dismiss this appeal, “ for the reason that there is no assignment of errors entered on the transcript herein, as required by law.”
Errors are properly assigned here by appellant, the defendant below, which call in question (1) the sufficiency of the complaint, and (2) the overruling of his motion for a new trial.
In his complaint appellee alleged that on the — day of April, 1883, he had an action at law pending in the Steuben Circuit Court, in Steuben county, against the appellant herein, Joel B. L. Smith, and in favor of appellee herein, Thomas A. Smith, to recover the sum of $4,000. damages; and that appellee was informed and believed, and at the time did believe, that he had a good and valid cause of action against such appellant; that appellant agreed with appellee, that, if the latter would dismiss and discontinue his aforesaid action, appellant would pay appellee the sum of $2,000; that relying on such agreement, and believing that appellant would pay such sum of $2,000, appellee dismissed and discontinued his aforesaid action; and appellee averred that appellant had neglected and refused to pay such sum, or any part thereof, and that such sum was then due and remained wholly unpaid. Wherefore, etc.
Appellant’s demurrer to appellee’s complaint, for the alleged insufficiency of the facts therein stated to constitute a cause of action, was overruled, and this ruling is the first error of which complaint is here made by appellant’s counsel in their brief<of this cause. The point is made by appellee’s counsel, and seems to be well made, that appellant’s assignment of errors does not present the ruling on the demurrer to the complaint for the consideration of this court. Appellant has assigned here as error that the court below, the Steuben Circuit Court, had erred in overruling his demurrer to
The sufficiency of appellee’s complaint is also challenged by appellant, by his assignment here, as error, that “the complaint does not state facts sufficient to constitute a cause of action.” Such an assignment of error is authorized, in civil actions, by the provisions of section 343, R. S. 1881, to the effect substantially, that the defendant shall not be deemed to have waived “the objection that the complaint does not state facts sufficient to constitute a cause of action,” by reason of his omission to make such objection, “ either by demurrer or answer.” Of course, such assignment of error questions the sufficiency of the complaint, after verdict and judgment thereon, with all their curative virtues and all the presumptions indulged in their favor and support, for the first time in this court. When thus questioned, the complaint must be radically and fatally defective; it must wholly omit the averment of material and necessary facts, essential to the existence of the cause of action attempted to be stated, to authorize or justify the reversal of the judgment by an appellate court, on account of such complaint. Donellan v. Hardy, 57 Ind. 393; Lassiter v. Jackman, 88 Ind. 118; Baltimore, etc., R. R. Co. v. Kreiger, 90 Ind. 380; Kinney v. Dodge, 101 Ind. 573.
Appellee’s complaint in the case in hand was good, we think, even on demurrer, and it was good, beyond all room for doubt, when called in question after verdict and judgment thereon, for the first time in this court.
Appellant’s counsel further complain of an alleged error of the court, occurring at the trial, in the admission of the files of appellee’s former action against appellant, as evidence in this cause. The bill of exceptions shows that when these files were offered in evidence, appellant objected to their admission on the ground that such evidence was immaterial, incompetent and had no tendency to prove a contract. It is further shown by the bill that afterwards, in overruling appellant’s objections to the offered evidence, the court instructed the jury in relation to such evidence, as follows:
“ Gentlemen of the jury: While I permit these files to go to you, you are not to accept them as the truth of anything that is averred in these papers, or to accept them as evidence of the truth of any facts averred in them, but simply for the purpose of showing to you that there was an actual controversy between the parties, and the character of that controversy. Further than that, you have no right to go. You have no right to assume that what is in these papers is true or false. You simply receive them, as showing that there was a controversy between the parties, and the character of that controversy.”
The files of the former action were clearly competent and relevant to the issues, for the purpose for which the court admitted them in evidence. It can not be supposed that the jury, acting under their oaths and the foregoing instruction, received or considered such evidence for any other purpose than the one for which it was admitted by the trial court.
There was no error in overruling the motion for a new trial.
The judgment is affirmed, with costs.