151 Ind. 36 | Ind. | 1898
Lead Opinion
The lower court sustained the demurrer, of the appellees to the complaint of the appellant seeking the review of a judgment theretofore rendered against the appellant as plaintiff, and in favor of the appellees as defendants. That ruling presents the only question for decision.
The complaint, omitting merely formal parts, was as follows, after alleging the filing of the complaint in the original cause:' “Wherein and whereby the plaintiff then and there sought to recover of the defendant Prairie school township in White county, Indiana, upon a contract and its assignment, duly described and set forth in said complaint, the alleged
It will be observed that from the allegations of the complaint no question of law arising in the original cause is stated, and no information as to the errors complained of is given, even in general form. Without reference to the transcript, as to each question of law narrowly suggested by the complaint, it is not possible to ascertain what propositions of law were involved, how they were decided, or what objections were urged to the court’s action or rulings. Reading the complaint without the exhibit, it would be impossible to determine whether the original hearing contained an error. The repeated allegations that “the-court erred” are only conclusions which lend no aid to the requirement that the complaint should disclose an error in some ruling of the court.
Enough of the substance or character of the court’s-action or ruling to present the error complained of,, without reference to the exhibit, must be alleged. Jamison v. Lake Erie, etc., R. R. Co., 149 Ind. 521; Findling v. Lewis, 148 Ind. 429. Under this rule the complaint before us was bad, and the court did not err in its ruling thereon. The judgment is affirmed.
Rehearing
On Petition for Rehearing.
Counsel for the appellant support their petition for a rehearing by an able and earnest brief, urging that the decision herein is a departure from a well-recognized rule of long standing. We have carefully read their briefs, and all of the cases-cited by them, and while assenting to many of the propositions contended for, we do not agree that a. single decision cited, nor one discovered by our re
If less than a complaint, within the statutory definition, is permitted in the one case it should be in the other. The court in considering either can have the same source of information in one as in the other, —the transcript. Nor need there be any misunderstanding that under the case of Jamison v. Lake Erie R. R. Co., supra, and this case, it is necessary to set out
We hold that it is necessary to allege the condition •of the record so as to advise the court of the existence of the error or errors relied upon. The pleading is not a sufficient complaint if, when its allegations are presented to the court, the court cannot say, “If supported by the record, this was error.” The rule upon which this case was decided was adhered to in Findling v. Lewis, 148 Ind. 429, and Jamison v. Lake Erie, etc., R. R. Co., supra.
Complaint is made also, that we decided the case-upon a question not discussed by counsel. The sufficiency of the complaint was discussed, and we deemed it our duty, seeing the deficiency in it, to uphold the .judgment of the trial court, although attention to that particular deficiency may not have been called by •counsel. We may not ignore what we do see that will prevent a reversal of the judgment. Big Creek Stone Co. v. Seward, 144 Ind. 205; Martin v. Martin, 74 Ind. 207; Jones v. Castor, 96 Ind. 307. As said in Martin, v. Martin, supra: “We never go beyond the brief of the appellant to search the record in quest of errors which have not been pointed out in the brief; but the appellee, without filing any brief at all, is entitled to the benefit pf everything in the record which may prevent a reversal of the judgment upon the errors assigned; and", because the counsel on both sides may •discuss some questions with very great learning and ability, as was done in this case, we are not, therefore, permitted to shut our eyes against the fact, which we cannot otherwise help seeing, that the question is not in the record. The silence of the appellee on any point is not equal to an agreement to waive the point; the burden is on the appellant to show the error which he