23 Ind. App. 130 | Ind. Ct. App. | 1899
On the 14th of June, 1892, the appellee filed in the court below his complaint against the appellant and Edgar A. Simmons,'sheriff, concerning which the Supreme Co-urt, in Michener v. Springfield, etc., Co., 142 Ind. 130, 131, 31 L. R. A. 59, said: “The general prayer for relief .was broad enough in this case to have justified the court in awarding the legal relief of a review of” a certain judgment therein referred to and described, which was rendered in favor of the appellant herein against the appellee herein, upon his default, on the 12th of July, 1890, “and the facts stated in the complaint only lacked one element to entitle the plaintiff [the appellee herein] to the legal relief of a review, and that was to file a transcript of the record of the judgment referred to and described in the complaint. The facts stated did not entitle the plaintiff to equitable relief by way of injunction, because they show that he had an ample legal remedy by review but did not as before observed justify the dismissal. It did not state facts sufficient to warrant the legal relief by way of review, because it did
On the 30th of October, 1895, the appellee filed, an amended complaint, and on the 6th of April, 1897, the appellee, with leave of court, filed his amended complaint against the appellant in two paragraphs. A demurrer to each of these paragraphs for want of sufficient facts was overruled. Each paragraph stated substantially all the facts contained in the complaint which the Supreme Court held to be not so defective as a complaint for review that it might not be amended and made sufficient by setting forth as an exhibit thereto a transcript of the judgment to be reviewed. Each paragraph of the amended complaint contained some averments additional to those of the original complaint, and was modeled as a complaint for review, and a transcript of the judgment to be reviewed was set forth as required by the Supreme Court. There could be no available error in tht. action of the court in holding each paragraph of the complaint sufficient on demurrer.
There was an answer of general denial, and there was also a second paragraph of answer, a demurrer to which was sustained. In this second paragraph, addressed to each paragraph of the amended complaint, it was alleged “that the plaintiff’s cause of action alleged in each of said paragraphs accrued more than three years before the bringing of this action to review the judgment described in each paragraph ■of said complaint.”
In such a case as the one before us, which was a proceeding ior review for material new matter discovered since the rendition of the judgment, the period within which the complaint for review may be filed, as provided by the statute, is “within three years” after the rendition of the judgment, except that any person under legal disabilities may file such a complaint at any time within one year after the disability is removed. §§627, 628 Burns 1894, §§615, 616 Horner 1897.
In Rosa v. Prather, 103 Ind. 191, it was held that there was no error in sustaining demurrers to certain replies addressed to the second and third paragraphs of answer. The form of the second paragraph of answer, as stated in the opinion of the Supreme Court, was: “That the judgment complained of was not rendered within one year before the time of the commencement of this proceeding.” The third paragraph was stated to be “that said judgment was not rendered within three years before this proceeding was commenced.” Ho question was suggested as to the form of these answers.
In Indianapolis, etc., R. Co. v. Center Tp., 130 Ind. 89, an answer averred that the money for the recovery of which the suit was prosecuted was paid to the township more than six years before the filing of the amended complaint in that cause. It was said by the Supreme Court, by way of objection to this pleading, that it was not averred therein that the cause of action did not accure within six years next before the commencement of the action, and that the issue tendered by it was immaterial, “as the vital time is the commencement of the action.”
■ The appellant’s second paragraph of answer was to the effect that the cause of action alleged in the amended complaint accrued more than three years before the bringing of this action as an action to review the judgment. This was not improperly treated by the court as an argumentative pleading, stating a legal conclusion. It was not alleged that the judgment was not rendered within three years before this proceeding was commenced, or before the filing of the complaint, or that the cause of action stated in the amended complaint did not accrue within three years before the commencement of this proceeding or before the filing of the complaint.
It must be held by us, following the Supreme Court, that the cause of action stated in the amended complaint was not a different one from that for which the proceeding was commenced in 1892, notwithstanding the differences which we have noted; and where this is true the amended complaint is not subject to attack by the statute of limitations. If by a comparison of the original and the amended complaints it appears that the latter does-not declare upon a cause of action different from that stated in the former, filed in due time, it has been held that a demurrer to an answer of the statute of limitations, though pleaded in proper form to the amended complaint, should be sustained. See Chicago, etc., R. Co. v. Gillison, 173 Ill. 264, 50 N. E. 657. This would seem to be a reasonable rule; at least, where it appears from the record, as it does here, that no right of a party has been abridged by a ruling of the court, there can be no available error in the ruling. • -
, The court rendered a- special finding; -stating the facts substantially as follows: The appellant, a foreign corpora
The court upon the foregoing findings stated a conclusion of law in favor of the appellee for the review of the judgment rendered against him upon default. The appellant excepted to the court’s conclusion of law.
The material new matter discovered after the rendition on the 12th of July, 1890, of the judgment against the appellee,, for which the review of the judgment was sought, was the release of the makers of the note by the judgment rendered on the 16th of April, 1892, in their favor in the same cause.
It appears from the record before us that this proceeding was commenced in the next term of court, on the 14th of June, 1892. The special finding contains some conclusions of law, yet we think it sufficiently appears from the record that there was a fulfilment of the requirement of the statute, §629 Burns 1894, §617 Horner 1897, that the new matter could not have been discovered before judgment, and the complaint was filed without delay after the discovery.
It appears that the appellee was an indorser, and -that the consideration for the notes was received by the makers • and
"We have not found any available error in the record. Judgment affirmed.