Trayser Piano Co. v. Kirschner

73 Ind. 183 | Ind. | 1880

Woods, J.

— Action by the appellee against the appellant. Finding and judgment for the plaintiff. The assignments of error are predicated on the action of the court in overruling the demurrers of the appellant to the respective paragraphs of the amended complaint, its motion to have the plaintiff required to make some of the paragraphs more specific, and its motion for a new trial, to each of which rulings exception was taken.

Counsel for the appellant has made no argument or suggestion in reference to the motion for a new trial. We are therefore relieved from considering it. There is, too, no question in the record in reference to the rulings on the demurrers.

The transcript shows that the original complaint was filed on the 19th day of January, 1878, in the Wayne Circuit Court, and, the case having been transferred by agreement to the Wayne Superior Court, an amended complaint was filed on June 4th, 1878, to which the appellant filed her demurrer two days afterwards, which was overruled. On the 12th the plaintiff filed his (second) amended complaint, which alone is contained in the transcript, and to this the appellant answered without demurring. It is clear, therefore, that there was no ruling upon a demurrer to the complaint on which the issues were formed and tried.

A bill of ■ exceptions in the record shows that the motion to have the complaint made more specific was filed June 12th, and after the filing of the amended complaint, but it is not clear whether it was filed before or after the last amended complaint was filed. The motion was sustained in so far as it asked for a more specific bill of particulars, but overruled in so far as it requested “the name of the officer or person, acting on behalf of the defendant, who made the alleged contract and agreement with the plaintiff.” The several paragraphs of the complaint were founded upon alleged parol contracts betweeu the plaintiff and the defendant, and it would doubtless have been proper for the court to have made an order on the plaintiff to state with what officer or agent of the defendant the contract was claimed to have been made. However, we do not think the judgment should be reversed on account of the refusal of the motion. It does not appear that the appellant was ignorant of the facts in this respect, or was surprised on the trial in reference thereto, or was harmed by the ruling in any way. If danger of surprise had been apprehended, and the appellant really desired the information asked for in her motion, she could have obtained it by an interrogatory addressed to the plaintiff.-

There are numerous cases wherein this court has held that defects and uncertainties' in a pleading which states facts sufficient can not be reached by a demurrer, but only by a motion to make certain, or to supply the defect; and, doubtless, there may be cases in which the judgment should be reversed on account of the refusal of the court to sustain such a motion, but not unless it be made to appear that the party has, or reasonably may be presumed to have, suffered harm from the adverse ruling. Sections of the code, 101, 580.

Judgment affirmed, with costs.