Trisler v. Trisler

| Ind. | Nov 15, 1876

Howk, J.

Appellant, as plaintiff, sued the appellees, as defendants, in the court below. Appellees demurred to the complaint, for the want of sufficient facts therein to constitute a cause of action. This demurrer was sustained by the court below, and to this decision appellant excepted.

Thereupon, appellant filed what is called in the record a second paragraph of his complaint. A demurrer to this paragraph was overruled, and issues were formed thereon, upon which a trial was had in the court below, which resulted in a finding for the appellant against the appellee Talbot T. Trisler, for the sum of thirteen dollars, and for the other appellees against the appellant. There was then a motion by appellant for a new trial, which motion was overruled, and appellant excepted, and judgment was rendered upon the finding by the court below.

In this court, the only errors assigned are based upon the decision of the lower court, sustaining appellees’ demurrer to appellant’s original complaint. In our opinion, this original complaint is not properly in the record of this cause. It is proyided in our practice act, that “ when there is an amended pleading of the same matter subsequently filed, embracing all the pleading first filed and the amendments thereto,” if any, “such amended pleading only,” and not the “ pleading first filed,” shall be certified by the clerk of the court below, as a part of the record. 2 R. S. 1876, p. 242, sec. 559. Debreuil v. Davis, 48 Ind. 396" court="Ind." date_filed="1874-11-15" href="https://app.midpage.ai/document/debreuil-v-davis-7040402?utm_source=webapp" opinion_id="7040402">48 Ind. 396.

In this case, appellant filed in the court below what he styled a second paragraph of his complaint. We have compared this paragraph with the original complaint, and we find that all the matters of fact stated in the latter, and none other, are repeated in almost the same language, in the former, and that the only perceptible difference between said original complaint and the so-called second paragraph is to be found in their prayers for relief. Indeed, appellant’s counsel admit, in their brief in this cause, that the second paragraph was “ substantially the same complaint,” as the original complaint.

We hold, therefore, that the original complaint is not properly any part of the record of this cause, and for this reason the errors assigned thereon present no questions for our consideration.

The judgment of the court below, therefore, is affirmed, with costs.