THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF James R Hutter 'U? Bus, Adm. PLEADING AND FORMS ADAPTED TO THE WITH A FULL CITATION OF ALL THE LATEST ADJUDICATED CASES IX INDIANA, AND NUMEROUS AUTHORITIES UNDER THE PRACTICE AT COMMON LAW AND IN EQUITY, AND UNDER THE CODES OF OTHER STATES (References to the Revised Statutes of 1881) BY JOHN D. WORKS HI SECOND EDITION VOX.. I CINCINNATI ROBERT CLARKE & CO 1887 Entered according to Act of Congress, in the year 1882, BY EGBERT CLARKE & CO. In the Office of the Librarian of Congress, at Washington. PREFACE. In the preparation of this book I have endeavored to make it sufficiently full in its statement to render it useful to the younger members of the profession who need something more than a mere digest of decided cases. To those of the profes- sion who care but little for general discussion or the reason- ing or opinions of the author, a full citation of authorities will be found in the book, the subjects being so classified, and in- dicated by head lines, 'as to render it one of easy reference, and make it a digest of the decided cases as well as a work on Practice and Pleading. A very careful and thorough study of the code, and of the decisions rendered before and after its adoption, has been made, with an earnest effort to arrive at its true intent and meaning, as well as the effect of the adjudicated cases, and furnish to the profession a thorough and complete work on Practice and Pleading in this State. Without the aid of a reliable digest this has been a task in- volving much labor. I found it absolutely necessary, in the investigation of each subject, to examine and make a digest for my own use of the decided cases on that subject. This required much time and patience. The work was partially completed when the new code was enacted, and a considerable portion of the first volume had to be rewritten. Where changes have been made by the revision of the code, they have been carefully noted. These changes will be found to be numerous and, in some instances, important. The change made in the manner of trying causes^ requiring that all suits in equity shall hereafter be tried by the court, is the most radical. This innovation may be found to be beneficial in practice, but I can not but regard it as a mistake brought about by the necessity for limiting the number of jury trials. The mistake, I think, was not in limiting the number of causes in which a jury trial may be demanded, but in making (iii) IV PBEFACE. the right to depend upon a distinction between common-law and equitable actions. It destroys the harmony of the code, and makes it conflict with itself. After the general provision that there shall be no distinction in practice and pleading, between actions at law and suits in equity, follows this one making a broad dis- tinction between the two in a most important branch of the practice. The great mass of decisions on Practice and Pleading under the code in this State, and the confusion that has naturally resulted from the radical changes that have been made by the code, and by amendments thereto since its adoption has, it is believed, made a thorough work of this kind a necesssity to the profession. I have made an earnest and painstaking ef- fort to supply this necessity ; how well I have succeeded must be left to the candid judgment of the profession throughout the State. Through the kindness of Hous. John H. Stotsenburg of of the Revision Commission, and E. R. Hawn, Secretary of State, I have been favored with advance sheets of the Re- vised Statutes of 1881, and the references are made thereto by sections. In the front of the book will be found a Table of Parallel Sections of the old and new codes as they appear in the Re- vised Statutes of 1852 and 1881. It is believed this table will be of service to the profession, as the decided cases down to the 76th Indiana Report contain references to the old code, and the numbers of the sections have been entirely changed in the revision. J. D. W. VEVAY, May, 1882. PREFACE TO THE SECOND EDITION. The forms contained in the second volume of the first edition were not prepared by the author. They did not prove satisfactory. This was no doubt due in a great measure to the want of space to develop them properly. At the earnest solicitation of the publishers, the author has prepared a third volume, devoted entirely to forms and notes. The effort has been made to furnish a full and complete set of forms relating to the practice in civil cases. Following each form proposi- tions relating to the subject-matter to which it relates, and as to what the particular form must contain, are laid down, and the authorities fully cited, thus making the volume a com- plete digest of the cases, as well as a book of forms. In preparing these forms the course of an action is taken, commencing with the complaint and ending with proceedings on appeal, including the forms necessary to be used in the re- moval of causes to the United States courts. To this is added forms in particular cases, including what are commonly called special proceedings. In short the attempt has been made to furnish a form for every step to be taken in the practice in civil cases. Volumes one and two have been carefully revised and the authorities brought down to the present time. This is sometimes done by a reference to volume three, where it has taken up the subject and cited the preceding volumes and cases decided since, thus furnishing all of the authorities, in the three volumes, without repetition. The chapter on judgments, which, in the first edition, was in volume two, lias been trans- ferred to volume one. Some of the chapters in volume two have been entirely rewritten and enlarged. The index to the first and second volumes remains in the second, to which has been added a full table of cases of the three volumes. Volume three has a separate index. J. D. W. SAN DIEGO, CALIFORNIA, October, 1886. (v) CONTENTS OF VOL. I. CHAPTER I. COURTS OF INDIANA , SECTION. SECTION. 1. The constitution and statutes. 3. Courts now existing. 2. Criminal circuit courts; act creating constitutional. CHAPTER II. JURISDICTION 4 4. What is jurisdiction. 5. When will be presumed. 6. When question of jurisdiction may be raised. 7. Constitutional jurisdiction can not be taken away by legislature. 8. Concurrent may be exercised by court first taking jurisdiction. 9. Concurrent with courts of other states. CHAPTER III. JURISDICTION OF THE COURTS OF INDIANA... 10. How regulated. OF THE SUPREME COURT. 11. Appellate jurisdiction. CIRCUIT COURTS. 12. General jurisdiction. 13. Is concurrent and exclusive. 14. Exclusive jurisdiction. 15. Of common pleas transferred to circuit court. 16. In counties having no superior court. 17. Concurrent jurisdiction. 18. Where subject-matter is in two or more counties. 19. Appellate jurisdiction. 20. From boards of county commis- sioners. '21. From mayors' and city courts. 'J2. From surveyors and awards of ar- bitrators. JUSTICES OF THE PEACE. 23. Have only statutory jurisdiction. 24. In misdemeanors. 25. In felonies. 26. In assault and battery. 27. Territorial jurisdiction. 28. Territorial civil jurisdiction. 29. Amount. 30. How amount of claim determined. 31. Exclusive jurisdiction. MAYORS OF CITIES. 32. Generally. CITY COURTS. 33. Concurrent jurisdiction. COUNTY COMMISSIONERS. 34. Judicial and legislative. 35. Exclusive jurisdiction. (vii) V11J CONTENTS. CHAPTER IV. PARTIES. 19 PLAINTIFFS. 36. Keal party in interest must sue. 37. Parties having united interest may sue. 38. Assignees may sue. WHAT MAY BE ASSIGNED. 39. The statute. 40. Assignment of judgments. 41. Vendors' liens. 42. Accounts. 43. Promissory notes. 44. What not assignable. 45. Eight of action for tort. 46. Chattels not in possession. 47. Certificates of purchase and guar- anties. ACTIONS BY AND AGAINST PUBLIC OFFICERS. 48. Township trustees. 49. On bonds payable to the state. 50. On bond of public officer. 51. On bond of county treasurer. 52. Commissioner to sell real estate. 63. On bond of township trustee. 54. When the state real party in in- terest. 55. In actions for money due the state in the hands of public oificer. 56. Surety of the peace. 57. To contest elections. 58. On guardian's bond. 59. Eelators in actions against tele- graph and other companies, un- der the statute regulating taxa- tion. EXECUTORS, ADMINISTRATORS, TRUS- TEES OF AN EXPRESS TRUST, AND PERSONS AUTHORIZED BY STAT- UTE TO SUE. 60. May sue without joining party in interest. 61. Agent not trustee of aji express trust. 62. Who is trustee of an express trust. 6iJ. Who authorized by statute to sue. ACTIONS THAT SURVIVE. 64. Personal representative may sue. 65. For injuries resulting in death. 66. Authority to sue under decedents' act. ACTIONS RELATING TO REAL ESTATE. 67. General rule. 68. Exceptions, where personal estate insufficient to pay debts. 69. Where no heirs present to take possession of real estate. 70. Growing crops. 71. On bond of administrator or ex- ecutor. 72. For what causes action on bond may be brought. 73. When creditor may sue on bond. 74. Action to set aside allowance of fraudulent claim. MARRIED WOMEN AS PLAINTIFFS. 75. When may sue alone. 76. When husband refuses to join in action. 77. When wife may PIH- for husband. INFAV. . 78. When may sue. 79. When sole plaintiff must sue by next friend. 80. May sue as poor person, without next friend. GUARDIANS AS PLAINTIFFS. 81. When may sue as such. 82. For seduction of ward. 83. Foreign guardians. 84. In settlement of decedents' estates. MISCELLANEOUS. 85. Unmarried female may sue for her own seduction. CONTEXTS. IX 86. Action by poor person. 87. When proper plaintiff refuses to join in action. 88. When parties are numerous, part may sue for all. 89. When surviving partner may sue. 90. Assignee for benefit of creditor. 91. For goods shipped C. (). D. 92. Persons of unsound mind. PARTIES DEFENDANT. 93. Who proper defendants. CHAPTER V. JOINDER OK PARTIES 94. Object of the code. 95. All parties united in interest must be joined as plaintiffs. . 9G. When persons having an interest need not be joined. 97. What is meant by unity of inter- est. 98. Changes wrought by the code; unity of interest. 99. The authorities. 100. Application of the rule. 101. Effect of joining too many plaint- iffs. 102. Authorities inconsistent with the statute. 103. Executors, administrators, trustees of express trusts, or guardians may sue alone. 104. The statute authorizing joinder liberally construed. 105. When one party may sue for all. 106. In actions relating to real estate ; tenants in common. 107. Actions to recover real estate. 108. By trustee to foreclose mortgage. 109. Actions to contest wills. 110. Married women. 111. Actions for injury to the wife. 112. Who must sue for injury causing the death of the wife. 113. Must be some person entitled to damages recovered, or no action can be maintained. 114. Two causes of action arise in case of injury to wife; when hus- band may sue. 115. On notes held by different parties, secured by same mortgage, par- t'<'-j c;ii! not join as plaintiffs. WHO MAY BE JOINED AS DEFENDANTS. 116. The statute. 117. Necessary parties must be, and proper parties may be, joined. 118. Who are necessary defendants. 119. Who are proper defendants. 120. In actions on joint contracts. 121. Several judgments may be re- covered against parties jointly sued. 122. Only parties liable in the same right should be joined. 123. In actions on notes and bills. 124. Executor or administrator of joint contractor can not be joined with survivor 125. Official bonds, and bonds of executors, administrators, and guardians, may be treated as joint or several. 126. All or any of the parties severally or jointly and severally liable may be sued, at the plaintiff's option.' 127. Principal and surety may be joined, but principal and guar- antor can not. 128. When indorser may be joined with maker of promissory note or drawer of bill of exchange. 129. What promissory notes are ne- gotiable by the law of this state. 130. When individual members may be sued for debts of corpora- tion. 131. In action by assignee, without indorsement, assignor must be joined. CONTENTS. NECESSARY DEFENDANTS IN ACTIONS FOR SPECIFIC PERFORMANCE OF CONTRACTS TO CONVEY REAL ES- TATE. 132. By vendee. 133. By vendor. 134. Where vendor is dead. IN FORECLOSURE OF MORTGAGES. 135. Necessary and proper parties. 136. Where several notes secured by the same mortgage are held by different parties. 137. When wife necessary party in foreclosure against husband; where wife does not join in mortgage. 138. Effect of statute making wife's interest absolute on judicial sale. 139. Wife can not maintain an action for partition, where mortgage is assumed by husband for pur- chase-monej". 140. Who must be made defendants, mortgagor being dead. 141. Owner of real estate must be made a defendant. 142. Mortgagor who has conveyed real estate not a necessary party. 143. When mortgagor has conveyed part of real estate mortgaged. 144. If mortgagor deceased, persona) representatives not necessary parties. 145. Junior incumbnmcers proper but not necessary parties. 146. Pendente lite purchasers 147. Heirs of purchasers. 148. Prior incumbrancers. 140. Surviving partner. PARTNERSHIP CONTRACTS. 150. Common law rule, where one partner is deceased. 151. Equitable rule. 152. Under the code. 153. The authorities under the code. 154. Effect of the authorities. 155. Dormant partners. 156. Nominal partners. ACTIONS TO PARTITION REAL ESTATE. 157. All the owners necessary parties. 158. Creditors. 159. Parties holding liens on individ- ual interests. 1GO. Parties laboring under legal disa- bilities. 161. Where the state is interested. 162. In actions to reinstate lost or de, stroyed papers or records. CHAPTER VI. NEW PARTIES INTERPLEADER 113 170. In actions to recover real or per- sonal property. INTERPLEADER. 171. The statute. 172. When party will be substituted by interpleader. 173. How new party substituted. 174. The notice. 175. When original party will be dis- charged. 163. When new parties may be sub- stituted. 164. Death of party; personal repre- sentative substituted. 165. Under the decedents' act. 166. When heirs substituted. 1>7. In case of legal disability. 168. When party transfers his interest. 169. When complete determination of controversy can not be had with- out new parties. CONTENTS. XI CHAPTER VII. CIVIL ACTIONS i21 176. The statute. 177. Construction of the statute. 178. The authorities. CHAPTER VIII. ACTIONS, WHERE COMMENCED ]?'. L ACTIONS THAT MUST BB COM- MENCED WHERE THE SUBJECT OF THU ACTION IS SITUATE. 179. The statute. 180. Actions for specific performance of contracts to convey real es- tate. 181. To set aside fuaudulent convey- ances of real estate. 182. To foreclose mortgages. 183. For injury to real estate. 184. Where real estate is situate in more than one county, suit may be brought in either. 185. Counterclaim. 186. For breach of covenant. 2. ACTIONS THAT MUST BE BROUGHT IN THE COUNTY WHERE THE CAUSE OF ACTION AROSE. 187. The statute. 188. Construction of the statute. 3. ACTIONS AGAINST CORPORATIONS. 189. The statute. 190. Construction of section 309. 4. ACTIONS FOR INJURIES TO PERSO., OR PROPERTY, AND UPON A LIA- BILITY AS COMMON CARRIERS. 191. The statute. 192. Construction of the statute. 5. AGAINST FOREIGN CORPORATIONS. 193. In any county where money or effects belonging to or due com- pany may be found. 6. TO CONTEST OR ESTABLISH WILLS. 194. In county where will should be probated. 7. ACTIONS THAT MUST BE BROUGHT IN THE COUNTY WHERE ONE OF THE DEFENDANTS RESIDES. 195. The 'statute. 196. Construction of the statute. 8. ON BILLS AND NOTES. 197. In county where one of the mak- ers, drawers, or acceptors re- sides. 198. Attachment proceedings. 199. Capias ad respondendum. 200. Actions in replevin. 201. Petition to sell real estate, by ad- ministrator. 202. Non-residents. CHAPTER IX. ACTIONS, HOW COMMENCED 145 THE SUMMONS AND PUBLICATION. 207. 203. The statute. 208. 204. "What is the commencement of an action. 209. 205. Summons must be made returna- ble at first term after its issue. 206. Summons, when returnable be- fore justice of the peace. 210. What summons must contain. When new summons must issue on cross complaint of surety. Summons must issue on supple- mental complaint. SERVICE OF SUMMONS. The statute. Xll CONTENTS. 211. Summons, how served, when de- fendant resides out of the state. 212. Service on infants. HOW SERVED ON CORPORATIONS. 213. The statute. 214. Officers upon whom service may be made. 215. In actions against railroad cor- porations for killing stock. 216. In actions to enforce liens against boats and other water-crafts. 217. In mandamus. 218. In actions against townships. PUBLICATION. 219. The statute. 220. What must be shown by the affi- davit for publication. 221. How long publication must be made. HOW DEFECTS IN SERVICE WAIVED. 222. By appearance. 223. Special appearance does not waive defects. 224. What constitutes an appearance. 225. An agreement indorsed on the complaint, waiving process, not an appearance. 226. Appearance may be in person or by attorney. 227. Appearance by attorney, without authority. 228. When attorney's authority to ap- pear can be controverted in a direct proceeding. 229. Some authorities the other way. 230. Effect of the rule. 231. Effect of appearance and attempt to set aside default. 232. Effect of agreement for judgment ; appearance at taking deposi- tions; giving special bail. 233. Can be no waiver on the part of an infant. 234. Appearance by agreement before justice of the peace. 235. Party may expressly waive ser- vice of process. 236. On voluntary appearance, may demand continuance, when. SERVICE BY COPT. 237. How made. 238. Meaning of term "last or usual place of residence." PROOF OF SERVICE. 239. The statute. 240. When service is made by private individual. 241. Proof of service, when made on party out of state. 242. By written acknowledgment of defendant on back of summons. 243. Officer's return must be attached to or indorsed on back of sum- mons. 244. Return of officer, when conclusive. 245. Proof of publication. 246. Proof of notice given out of court. 247. What return should show. DEFECTIVE PROCESS. 248. How to proceed in case of defec- tive process or service. 249. Agreed case, when and how com- menced. CHAPTER X. LIMITATIONS OF ACTIONS 167 250. The statute. 251. Special statutes. 252. Statute affects the remedy only, and is constitutional. 253. A statute which takes away an existing cause of action or de- fense is unconstitutional. 254. W T hen a statute will be construed to be retroactive. CONTENTS. Xlll WHEN STATUTE COMMENCES TO RUN. 255. From time cause of action ac- crues. WHEN CAUSE OP ACTION ACCRUES. 256. In actions on promissory notes payable in bank. 257. In actions against agents, factors, and attorneys. 258. Actions against trustees, and to enforce subsisting trusts. 259. Where an officer or other person is bound by statute to pay or ac- count at a fixed time. WHEN A DEMAND IS NECESSARY. 260. Kules established by decided cases. 261. Notes payable when maker "is able." 262. Actions to recover personal prop- erty. 263. In an action by one partner against another for an account- ing. 264. Demand excused by some act of the defendant. 265. When cause of action accrues where a tender is necessary. 266. Effect of statute where action may be in tort or upon contract. 267. Actions on open and current ac- counts. 268. Meaning of the term "open and current account." EXCEPTIONS. 269. Statutory exceptions. SET-OFF. 270. As a defense, not barred. LEGAL DISABILITIES. 271. Statute does not apply where party is laboring under legal disabilities. 272. Meaning of the term " under le- gal disabilities.'' 273. Where more than one legal disa- bility exists. 274. Effect of disability in case of ap- peals. 275. Non-resident of the state, or ab- sent on public business. 276. Section 297 only applies to causes of action that accrue out of the state. 277. What is meant by the phrase "absent on public business." 278. Limitations of another state can not be set up in an action re- specting real estate. 279. Case of Smith v. Wiley, 21 Ind. 224, criticised. 280. Effect of death of one of the par- ties before' the statute has run its full time. 281. Where plaintiff has once brought his action and failed; time ex- tended in certain cases. 282. Where the action abates, or is de- feated by the death of one of the parties. 283. Where the judgment is arrested or reversed on appeal. CONCEALMENT. 284. Statute does not run where the defendant conceals the cause of action. 285. What amounts to concealment, within the meaning of the stat- ute. NEW PROMISE ACKNOWLEDGMENT. 286. Cause taken out of the statute by acknowledgment or promise in writing. 287. This exception applies only to ac- tions on contract. 288. What is a sufficient new promise. 289. Effect of acknowledgment or promise by one joint contrac- tor. 290. A joint contractor, once released, can not be made liable to his co-contractor, who has been compelled to pay the debt. XIV CONTENTS. PART PAYMENT. 291. Effect of part payment. 292. "What is part payment, within the meaning of the statute. 293. By and to whom payment must be made. 294. Will a new promise, acknowledg- ment, or part payment, by an executor or administrator, avoid the operation of the statute? PARTNERS. 295. A promise or part payment by one partner will bind the firm, if made before dissolution, but not if made afterward. CITIZENS OF BELLIGERENT POJVERS. 296. The statute of limitations does not run between citizens of dif- ferent belligerent powers during the existence of war. JOINT CONTRACTS. 297. Practice where one of several persons entitled to bring a joint action is barred by the statute. MECHANICS' LIENS. 298. Limitations in case of mechanic's lien. 299. Time ceases to run from the time notice is left for record. 300. Notice must show if a credit has been given, or the time in which to sue will be limited to one year from the completion of the work. 301. Limitation does not apply to no- tice required by section 5295 to be given by sub-contractors. 302. When statute commences to run in such cases. i HEIRS, DEVISEES, AND DISTRIBUTEES. 303. Limitation of actions against heirs, devisees, and distributees, for the debts of the decedent. THE UNITED STATES AND STATE OF INDIANA. 304. The United States not barred, and the State of Indiana not barred by the statute, except as to sureties. JUDGMENTS AND DECREES. 305. Limitations of judgments and de- crees. HOW QUESTION RAISED. 306. How the question of the statute of limitations may be raised. 307. Statute must be specially pleaded. 308. Statute need not be pleaded in actions to lecover real estate. 309. Exceptions to the statute must be specially pleaded by way of re- p ] y- 310. May plead exceptions in supreme court. CHAPTER XI. JOINDER OF CAUSES OF ACTION 214 311. The statute. 312. Effect of misjoinder. 313. Difference between misjoinder and duplicity. 314. Misjoinder of parties and causes of action in same complaint; how defect reached. 315. The liabilities of defendants must be the same. 316. Actions against different defend- ants may be joined, when. 317. Meaning of section 280 of the statute. 318. Actions for tort and on contract may be joined, when. 319. The rule in equity. 320. Causes that may be joined par- ticularlv classified in Indiana. CONTEXT.-!. XV 321. Actions to set aside fraudulent- conveyances made by debtor to different parties may be joined. 322. Meaning of term "cause of ac- tion." 023. Whether causes of action are im- properly joined determined from facts stated in complaint. 321. May be but one causeof action and several remedies. 325. In equity, if plaintiff had one general right, there was but one cause of action. 320. Meaning of phrase "money de- mands on contract." 327. Money demand for a tort can not be joined with one on contract. 328. Statute liberally construed. 329. Difference between our code and those of other states. 330. In equity, the causes authorized by section 279 to be joined were treated as one cause of action. 331. Actions against husband and wife. 332. Guarantor can not be joined with maker of notes. INJURY TO PROPERTY. 333. Construction of the statute. INJURIES TO PERSON AND CHARACTER. 334. What included in this class. 335. Injuries growing out of the same wrong can not always be joined. 33G. Causes of action must inure to plaintiff in the same right. 337. Damages to real estate; when can be joined with action to recover possession. 338. Actions for specific performance and to avoid contracts for fraud and mistake. 339. To recover purchase-money, and for sale of real estate. 340. Actions for partition and to -en- force lien on same real estate can not be joined. CHAPTER XII. PLEADINGS THE COMPLAINT 341. Effect of the code on common-law 351. and equity rules of pleading. 342. The statute. 352. 343. Objections to the system consid- 353. ered. 354. THE COMPLAINT GENERAL RULES. 344. The statute. 355. 345. Must contain the title of the cause. 340. Conclusions of law must not be 356. pleaded. 347. Neither presumptions of law nor matters of which judicial notice 357. will be taken need be stated in pleading. 358. 348. Of what the courts will take ju- dicial notice. 359. 349. Of what the courts will not take judicial notice. 360. 350. Comments on the decided cases. 361. Complaint need not be in any particular form. Evidence should not bu pleaded. Facts must be stated positively. Complaint must show cause of action in all who unite as plaintiffs. Where complaint may be for tort or upon contract ; election. Every substantial fact necessarv to constitute a cause of action must be alleged. "When it is necessary to plead matter of inducement. Matter of aggravation may be ple:ided. Privity of contract need not be shown under the code. Fictions must not be pleaded. Defense should not be antici- pated. XVI CONTENTS. EXCEPTIONS TO RULE THAT DEFENSE MUST NOT BE ANTICIPATED. 362. Negligence. 363. Non-payment. STATUTORY RIGHTS. :!04. Facts must be stii'od. 365. Exceptions in the statute. 366. Statute of frauds. :>67. Statute of limitations, CAPACITY TO SUE. 368. In actions by executors or admin- istrators, their capacity to sue need not be alleged. 369. The rule in actions by guardians. 370. In actions by foreign guardians, right to sue must be shown. 371. In actions by or against corpora- tions, facts showing corporate existence need not be pleaded. SURPLUSAGE. 372. What is surplusage. 373. What is material in a complaint. 374. Effect of too great particularity of- averment. DUPLICITY. 375. What will amount to duplicity. 376. Several causes of action may be stated in the same complaint in different paragraphs, numbered. 377. Where there are two causes of action, and but one relief, causes should be stated in separate paragraphs. 378. The same cause of action may be differently stated in different paragraphs. 379. Inconsistent causes of action may be joined. 380. One cause of action should not be divided up and set out in differ- ent paragraphs. 381. In suing on a bond, several breaches may be alleged in the same paragraph. 382. Action on mortgage securing sev- eral notes. 383. Each paragraph must be good within itself. CERTAINTY. 384. The complaint should be certain. 385. Certainty as to time. 386. Certainty as applied to place. 387. Complaint need not allege a de- mand at any particular place in actions on bills and notes. 388. Certainty required in averments of subject-matter. CERTAINTY OF DESCRIPTION. 389. Of personal property. 390. In actions relating to real estate. 391. Monuments control distances. 392. In actions for specific perform- ance of contracts to convey real estate. 393. In actions to enforce mechanics' liens. EXCEPTIONS TO COMMON-LAW RULES AS TO CERTAINTY. 394. Conditions precedent. 395. The section does not apply to al- legations of excuse for non-per- formance of conditions. 396. Private statutes. 397. Actions for libel and slander. 398. On judgments. 399. In actions to contest wills. 400. Negligence. FRAUD. 401. Facts constituting the fraud must be stated. CONSIDERATION. 402. When a consideration must be alleged. 403. Facts showing consideration must be pleaded. TITLE. 404. The complaint must show title. CONTENTS. XVI! 405. Title to real property; actions to recover real estate* 406. Can not allege a legal and recover on an equitable title. 407. Possession may be recovered on an equitable title. 408. Where ownership is alleged gen- erally, can the plaintiff recover on proof of an equitable title? 409. Complaint need not show title in action by landlord against ten- ant for possession. 410. In actions for forfeiture for the failure of condition subsequent. 411. For trespass on land. 412. To recover personal property. 413. In actions on promissory notes. IN ACTIONS OTHER THAN FOB MONEY OR SPECIFIC PROPERTY, THE COM- PLAINT MUST SHOW THAT THERE IS NO OTHER ADEQUATE REMEDY. 414. Rule not changed by the code. IN ACTIONS FOUNDED ON WRITTEN IN- STRUMENT, THE ORIGINAL OR A COPY MUST BE FILED WITH AND MADE A PART OF THE COMPLAINT. 415. The statute. 416. Exhibits control averments in pleading. 417. What is a written instrument within the meaning of the sec- tion. 418. When the written instrument is the '-foundation of the action." 419. Must be referred to and made part of the pleading. 420. Written instrument, not the foun- dation of the action, can not aid the pleading. 421. Contract not alleged to be in writing conclusively presumed to be verbal. 422. The same copy may be referred to and made part of every pleading in the case. ACTIONS AGAINST HEIRS FOR DEBTS 07 ANCESTORS. 423. What complaint must show. DEMAND FOR RELIEF 1 . 424. The complaint should contain a prayer for relief. 425. Prayer can not enlarge, but may diminish, cause of action. 426. Complaint must be signed by plaintiff or his attorney. 427. Cross-complaint. WHEN COMPLAINT SHOULD BE VERI- FIED. 428. Only necessary, as a rule, where extraordinary relief is de- manded. 429. In replevin. 430. Injunction. 431. Mandate and prohibition 432. Attachment. 433. Arrest and bail. 434. To review judgment. 435. Execution against the body. 436. Proceedings supplementary to execution. 437. Proceedings to revive judgments. 438. Ne exeat. 439. Habeas corpus. 440. Proceedings to contest wills. 441. Applications to set aside default. 442. Complaint for new trial. CHAPTER XIII. PROCEEDINGS AFTER COMPLAINT FILED .,... 294 1. WHERE PART OF DEFENDANTS ARE NOT SERVED WITH PROCESS. 443. The .statute. 444. Effect of the statute. 445. Amendment of section 641. XV1H CONTENTS. 2. WHERE THERE IS A RETURN OF NOT FOUND. 446. The statute. 447. Judgment taken against one de- fendant abates action as to oth- ersj unless continued as to them. 3. WHERE THE PARTIES ARE SERVED WITH PROCESS, OR ENTER AN AP- PEARANCE DEFAULT. 448. When default may be taken. 449. Default, where there is no appear- ance. 450. Where appearance is withdrawn. 451. Default on failure to answer in- terrogatories. 452. Where a defendant fails to attend as a witness for plaintiff. 453. Answer must be stricken out be- fore default can be taken. 454. Can not be taken against an in- fant. 455. What is admitted by a default. 4oo. Does not admit jurisdiction of court, or that complaint states a cause of action. 457. When defendant is constructively summoned. 4. RIGHTS OF DEFENDANTS AFTER DE- FAULT. 458. May contest amount of damages. 459. May appeal to the supreme court. 5. WHEN AND HOW DEFAULT SET ASIDE. 460. The statute. 461. Application may be by motion or complaint. 462. What motion or complaint must contain. 463. How proof made in applications to set aside default, and what may be controverted. 464. Effect of setting aside default taken against one of several de- fendants. 465. Court can not set aside default, on condition that costs are paid. 466. Section 396 does not apply to ac- tions for divorce. 467. The section applies to plaintiffs. 468. Effect of setting aside default. . CHAPTER XIV. DEMURRER.. 309 469. The statute. 477. Section 307 of the statute one of 470. Must be for some one of the stat- jurisdiction. utory causes. 478. Jurisdiction of the person waived 471. Form. by failure to demur. 472. For one cause does not reach other defects. 2. That the plaintiff has not legal co- 473. Neither general nor special de- parity to sue. murrers under the code. 479. Applies to legal disabilities. CAUSES FOR DEMURRER. 1. The court has no jurisdiction over the person of the defendant or the subject- matter. 474. Jurisdiction presumed. 475. In inferior courts, jurisdiction must affirmatively appear. 476. When jurisdiction of the person may be questioned by demurrer. 3. That there is another action pending between the same parties for the same cause. 480. Does not apply to actions pending in another state. 481. Nor to actions subsequently brought. CONTENTS. XIX 4. That there is a defect of parties plaintiff" or defendant. 482. Construction of the clause. 483. What demurrer for defect of par- ties must contain. 5. That the complaint does not state facts sufficient to constitute a cause of action. 484. Not waived by failure to demur. 485. Defects not reached by demurrer for want of sufficient facts. 486. Effect of pointing out particular defects. 6. Misjoinder of causes of action. 487. Must be to whole complaint. 488. Wbnt is misjoinder of causes of action. 489. Objection must be raised by de- murrer. 490. Difference between misjoinder of causes of action and misjoinder of parties. vf HAT DEFECTS DEMURRER WILL NOT REACH. 491. Defects formerly reached by special demurrer. 492. Surplusage. 493. Uncertainty or indefiniteness. 494. Duplicity. 495. Irrelevant and redundant matter. 496. Sham defense. 497. How pleading shown to be sham. 498. Rule under the revised code. 499. Can general denial be stricken out as sham ? 500. Frivolous pleading. 501. Repugnancy. 502. Argumentativeness. 503. That pleading is not verified. 504. Misjoinder of parties. 505. Misnomer. 506. Answer of set-off in tort. 507. Statute of limitations. 508. Amount of damages. 509. Illegality of contract made on Sunday. 510. Defects in prayer. 511. Part of paragraph. WHAT DEFECTS REACHED BY DEMUR- RER. 512. Departure. 513. That written instrument founda- tion of the action or defense is not made part of the pleading. 514. The statute of frauds. 515. Estoppel. 516. Variance. 517. In claims against estates. 518. When demurrer equivalent to motion to strike out or dismiss. WHAT IS WAIVED BY FAILURE TO DE- MUR. 519. All defects appearing on face of pleadings. 520. Exceptions; that the court has not jurisdiction of the subject- matter, and that complaint does not state facts sufficient to con- stitute a cause of action, not waived. 521. Defects cured by verdict not waived. WHEN DEMURRER REACHES BACK. 522. For defects not cured by failure to demur. 523. Want of jurisdiction, and that pleading does not state facts sufficient. 524. Demurrer to reply reaches defects in answer and complaint. 525. Rule under the revised statute of 1881. 526. Demurrer to plea in abatement can not be carried back. WHAT DKMURRER ADMITS. 527. Facts well pleaded. JOINT, SEVERAL, AND SEPARATE DE- MURRERS. 528. When joint or several. 529. Separate demurrers. CONTENTS. 530. Demurrer joint as to pleading must be overruled, if either paragraph good. 531. Joint as to parties, must be over- ruled, if pleading is good as to either. HOW DEFECTIVE PLEADINGS CURED. 532. By verdict. 533. What defects cured by verdict. 534. By answer. 535. By statute. 536. By award. 540. Can not plead and demur at same time. 541. By going to trial. 542. Effect of adjudicated cases. 543. When court presumed to have passed upon demurrer. 544. Effect of waiver. DEMURRER IN PARTICULAR CASES. 1545. Petition for highway. 546. Mandate. 547. Proceedings supplementary to ex- ecution. WHEN RULING ON DEMURRER HARM- LESS. 637. Sustained to good paragraph. 638. Overruled to bad paragraph. WHEN DEMURRER WAIVED 539. By pleading over. DEMURRER TO EVIDENCE. 548. Its form. 549. What demurrer admits. 550. Waives objection to adrflissibility of evidence. 551. Joinder in demurrer. 552. What joinder admits. CHAPTER XV. ANSWER.. . .. 358 553. Scope of the chapter. 554. Kule to answer. DISCLAIMER. 555. Nature and effect of. 556. When party may disclaim. 557. May disclaim part and answer part of complaint. 558. Interpleader. ABATEMENT. 559. Nature of the defense. 560. Must precede pleas in bar. 561. Must be specially pleaded. 562. Must be verified. 567. Another action pending. 568. Can attachment proceedings be pleaded in abatement? 569. Misnomer. 570. Actions prematurely brought. 571. Death of party. 572. In attachment proceedings. HOW MATTERS IN ABATEMENT WAIVED. 673. By failure to demur. 574. By pleading to the merits. 575. By going to trial on the merits. 576. Answers in abatement strictly construed. WHAT MAY BE PLEADED IN ABATE- MENT. 563. Want of jurisdiction of the per- son. 564. Want of capacity to sue. 565. Non-joinder of necessary parties. 566. Must show that omitted defendant is still living. ANSWER IN BAR. 577. The statute. THE GENERAL DENIAL. 578. Object and form. 579. What may be proved under. 580. Mitigation of damages. CONTENTS. XXI 681. In actions to recover real estate and to quiet title. WHAT THE GENERAL DENIAL ADMITS. 682. Capacity of plaintiff to sue. 583. Execution of written instrument. 684. Executors, administrators, and guardians need not deny execu- tion of written instrument, un- der oath. 685. Existence of corporation plaintiff. NEW MATTER SPECIAL ANSWER. 586. What is new matter. MANNER OF STATEMENT. 687. Defenses must be separately pleaded and numbered. 588. Answer may go to part of a para- graph of complaint. 589. May confess and avoid a part and deny a part of complaint in same paragraph. 590. Answer must state facts. 591. Defenses may be inconsistent. 592. Each paragraph must be good within itself. 593. Equitable defenses. WHAT MUST BE PLEADED SPECIALLY, AND HOW PLEADED. 594. Payment. 695. What plea of payment must con- tain. 596. Payment after suit brought. 597. Payment of less than is due. 598. Accord and satisfaction. 599. Arbitration and award. 600. Want of consideration. 601. Who may plead want of consid- eration. 602. Illegal consideration. 603. Failure of consideration. 604. Partial failure of consideration. 605. Former adjudication. 606. Estoppel in pais. 607. Estoppel against married women. 608. Release of surety; failure to sue principal. 609. By extending time to principal. 610. By alteration of the contract. 611. By surrender of lien on property of principal, or other security held by creditor. 612. Release of indorser; by failure to sue maker. 613. Tender. 614. Effect of tender. 616. Tender after suit brought. 616. Failure of plaintiff to tender per- formance. 617. Usury. 618. Who may plead usury. 619. Breach of covenant; deed the foundation of the action. 620. Of title and for quiet enjoyment. 621. What will amount to an eviction. 622. Covenant against incumbrances. 623. Covenants in deeds of general warranty. 624. Covenants of married women. 625. Discharge in bankruptcy. 626. Statute of limitations. 627. The statute of frauds. 628. Fraud. 629. Adverse possession of real estate. 630. Release or other discharge. ANSWERS IN LIBEL AND SLANDER. 631. Mitigation of damages. 632. Truth of the words. 633. In tort generally. 634. What must be pleaded specially by executors and administrators. ANSWERS THAT MUST BK VERIFIED. 635. Non est factum. 636. Non est factum, by executors an38. When and how pleaded. xxn CONTENTS. CHAPTER XVI. SET-OFF COUNTERCLAIM 420 SET-OFF. 639. The statute. 640. Nature of set-off. 641. Only allowed in actions for money demands on contract. 642. May be pleaded where plaintiff treats tort as contract. 643. The set-off must consist of matter arising out of debt, duty, or con- tract. 644. Tort may be treated as contract, and pleaded as a set-off. 645. Damages need not be liquidated. 646. Demands must be mutual. 647. Exception to rule that demands . must be mutual; suretyship. 648. Where plaintiff holds claim sued on as trustee, defendant may set off demand existing in his favor against the cestui que trust. 649. Set-off may be pleaded against assignee. 650. Rule where note sued on is gov- erned by the law-merchant. 651. Set-off must be of a subsisting debt held by defendant at the time suit is commenced. 652. Claim barred by statute of limita- tions may be pleaded. 653. Surety may pay debt of principal and use the same as a set-off. 654. May be pleaded by and against executors and administrators. 655. Must be due when offered. 656. Right of set-off between banks and depositors. 657. Set-off can not be pleaded against married women. 658. Character of indebtedness must be shown by the pleading. 659. May waive set-off and bring an independent action. 660. Set-off can not be pleaded against taxes. 661. Pleading need not answer the whole complaint. 662. Judgment may be set off against judgment. 663. Judgment may be pleaded as a set-off in an action on note or other indebtedness. COUNTERCLAIM. 664. The statute. 665. Construction of the statute. 666. Recoupment merged in counter- claim. 667. Counterclaim must arise out of or be connected with the plaintiff's cause of action. 668. Must be in favor of the defendant pleading it. 669. Surety can not plead counterclaim in favor of principal. 670. Part of defendants may plead counterclaim. 671. Must be against the plaintiff. 672. Must impair, affect, or qualify the plaintiff's right to relief. 673. Cause of action in plaintiff need not be admitted. 674. Equitable cause of action may be pleaded. 675. Counterclaim must exist when the action is commenced. 676. Tort can not be pleaded as coun- terclaim. 677. Pleading can not perform double office of answer and counter- claim. 678. Will be construed to be either an- swer or counterclaim, according to the facts stated. 679. Demurrer to pleading as an an- swer does not reach defects therein as a counterclaim. 680. Must plead cause of action as a counter-claim, or pay cost of subsequent action thereon. CONTENTS. XXHl 681. Dismissal of original complaint does not affect counterclaim. 682. Cross-complaint unknown to the code. CHAPTER XVII. REPLY. 451 683. The statute. 684. The general denial. 689. Argumentative reply. 690. Must avoid the whole answer. NEW MATTKR. STATUTE OF LIMITATIONS. 685. Must support the complaint and 691. Exceptions must be pleaded by avoid new matter in the answer. way of reply. 686. Departure. 687. New assignment. SET-OFF. 688. New matter must be specially 692. May be pleaded to a set-off. pleaded. 693. Effect of failure to reply. CHAPTER XVHI. VARIANCES AND AMENDMENTS..., , 455 694. Statutory provisions. 695. Changes effected by the statute. 696. Amendments, how made. AMENDMENTS, AS OF COURSE. 697. Before pleading is answered. AMENDMENTS BEFORE TRIAL. 698. Before the issues are closed. 699. After the issues are closed. 700. Discretion of court. 701. After demurrer sustained. 702. After reversal by the supreme court. ON THE TRIAL. 703. Amendment changing the issues . may be made. AFTER VERDICT. 704. Can not change the issues. ON APPEAL FROM JUSTICE OF THE PEACE. 705. Kule the same as in other cases. 706. By supplemental pleading. EFFECT OF AMENDMENT. 707. Waives ruling on demurrer to original pleading. 708. When will entitle opposite party to a continuance. 709. When the jury must be re-sworn. 710. When is the commencement of a new action. 711. Amended pleading takes place of original. ON WHAT TERMS LEAVE TO AMEND GRANTED. 712. Costs. HOW OBJECTION TO AMENDMENT MADE. 713. No affidavit necessary. AMENDMENT OF RECORDS. 714. During the term. 715. May be made without notice. 716. After the term. 717. Application must be by motion. 718. Notice must be given. 719. May be made after appeal. OF BILLS OF EXCEPTIONS. 720. Can not be corrected by parol ev- idence alone. OF PROCESS. 721. The summons. XXIV CONTENTS. 72. Executions. 723. Officer's return. VARIANCE AND FAILURE OF PROOF. 724. Variance. 725. Variance and failure of proof dis- tinguished. 7'26. Material only when opposite party shows by affidavit that he has been misled. 727. When will be deemed amended in supreme court. 728. How question of the right to amend raised. 729. Description of written instru- ments. CHAPTER XIX. THE TRIAL 730. Trial defined. ISSUES. 731. Generally. 732. Order of forming issues. ISSUES OF LAW. 733. How raised and tried. ISSUES OF FACT. 734. Raised by answer and reply. 735. By answer in abatement first^ tried. 736. May be waived. WHEN CAUSE MAY BE CALLED FOR TRIAL. 737. At first term ; exception. CONTINUANCE. 738. Generally. 739. Absence of evidence. 740. Evidence must be material. 741. Must show due diligence. 742. The name and residence of the witness. 743. Probability of procuring the tes- timony. 744. That the facts can not be proved by any other wilne . 745. The facts to which he believes the witness will testify, and that he believes them to be true. 746. Competency of the witness. 747. If opposite party will admit that the witness will testify to the facts, or, if it is documentary evidence, that it is true, contin- uance will not be granted. 480 748. On account of the absence of a party. 749. On account of the absence of an attorney. 750. Who may make the affidavit. 751. On suppression of depositions, or filing same too late. 752. Second application during same term. 753. Affidavit may be amended. 754. For process. 755. For answers to interrogatories. 756. Defendant constructively sum- moned. TRIAL BY JURY. 757. Number of jurors. HOW SELECTED. 758. Regular panel. 759. Special venire. 760. Special jury. 761. Struck jury. 762. Talesmen. 763. Qualification of jurors. 764. Juror must be disinterested. 765. Having formed or expressed an opinion. 766. Public interest. CHALLENGES. 767. For cause. 768. Peremptory challenges. 769. Challenge to the array. 770. Challenge to the poll or to the array must be made before the jury is sworn. 771. Discharge of competent juror. CONTENTS. XXV 772. Examination of juror as to his competency. 773. Juror having suit in court. 774. Swearing the jury. 775. Mental and physical qualifica- tions. 776. Persons exempt from service as jurors. OPEN AND CLOSE. 777. Party having the burden of the issue entitled to begin. 778. The opening statement. 779. The evidence. 780. The closing argument. INSTRUCTIONS. 781. Special instructions. 782. May be modified, but not ver- bJlly. 783. When proper instructions asked may be refused. ?84. General instructions. 785. Must be in writing when re- quested. 786. Error to give any part of instruc- tions orally, over request that they be in writing. 787. Must be applicable to the issues and the evidence. 788. Must not assume a fact to be true. 789. When the court may instruct the jury to find for either party. 790. Additional instructions may be given where the jury disagrees. 791. Instructions must be numbered. 792. Must be settled before the argu- ment, when requested. 793. When erroneous instructions harmless. 794. How erroneous instructions cured. EXCEPTIONS TO INSTRUCTIONS. 795. When must be taken. 796. How to be taken. 797. The jury may view property or place. 798. The jury must be cautioned, when allowed to separate. 799. What papers may be taken to the jury room. 800. Polling the jury. 801. When the jury may be discharged. TRIAL BY THE COURT. 802. Governed by same rules as trial by jury. 803. Special finding. 804. Must be at the request of one or both of the parties. 805. Must be in writing, and should be signed by the judge. 806. Must contain the facts not evi- dence. 807. Must contain all the* facts neces- sary to a recovery. 808. Only facts within the issues should be included in the find- ing. 809. Exception must be to the conclu- sions of law. 810. Does not waive motion for new trial or for a venire de novo. TRIAL BY AQREED CASE. 811. The statute. 812. Affidavit necessary to give the court jurisdiction. 813. Statement of facts must show a cause of action. TRIAL BY REFEREES. 814. What may be referred. 815. How referees selected. 816. The trial conducted the same as a trial by the court. 817. Nature and effect of referees' re- port. 818. How exceptions must be taken. 819. Objections to the report. 820. Referees' duties end with the re- port. TRIAL BY MASTER COMMISSIONER. 821. Generally. WHAT CAUSES ARE TRIABLE BY JUBY. 822. The statute. XXVI CONTENTS. WHAT CAUSKS WEKK TRIABLK BY JURY UNDER THE CODE OF 1852. 823. Civil actions. 824. Causes in which the right of trial by jury has been held not to exist. 825. Causes that have been held to be triable by jur}-. CAUSES TRIABLE EXCLUSIVELY BY COURTS OF CHANCERY, PRIOR TO JUNE 18, 1852. 826. General discussion. 827. Causes enumerated. HOW JURY TKIAL MAY BK WAIVED. 828. The statute. 829. When jury waived by failure to appear. 830. What will amount to oral consent entered of record. DISMISSAL OF ACTION. 831. When action may be dismissed. 832. Dismissal in vacation. 833. By the court. 834. Effect of dismissal; stay of pro- ceedings in second action for payment of costs. 835. Set-off; counterclaim. CHAPTER XX. VERDICT?., 54: 836. Is general or special. GENERAL VERDICT, 837. Form. 838. On several issues. 839. May be amended. 840. Sealed verdict. 841. When and how returned. 842. Must be in writing and signed. 843. When becomes part of the record. 844. Compromise or chance verdict. 845. Set-off; counterclaim. VERDICTS IN PARTICULAR CASES. 846. Replevin. 847. In highway cases. . 848. Verdict for more than amount asked for in the complaint. SPECIAL VERDICT. 849. When may be returned. 850. May be returned with general verdict. 851. What must find. 852. Draft may be prepared by the parties. INTERROGATORIES. 853. Must be submitted at the request of either party. 854. When request to submit must be made. 855. Form. 856. Evidence; conclusions of law. 857. Must be as to a material fact. 858. Must be fully and fairly an- swered. 859. Request for waives special verdict. 860. Each answer must be signed. 861. When answers control general verdict. 862. Can only be returned with the general verdict. 863. Can not be withdrawn from the jury- 864. Motion for judgment on. 865. When treated as a special ver- dict. CHAPTER XXI. NEW TRIAL VENIRE DE Novo 504 NEW TRIAL. 866. The statute. THE MOTION. 867. Must be in writing. CONTENTS. XX VI I 868. When must be filed. 69. Must point out the errors com- plained of with reasonable cer- tainty. 870. Truth of causes must be shown by bill of exceptions. 871. When must be verified. 872. Joint motion. 873. In attachment proceedings. 874. Is part of the record. 875. Successive motions. 876. Must be granted as to the whole case. CAUSES FOB NEW TRIAL. 1. Irregularity in the proceedings of the court, jury, or prevailing party, or any order of court or abuse of discretion by which the party was prevented from having a fair trial. 877. What embraced in this specifica- tion. 878. Irregularity in the proceedings of the court. 879. Continuance. 880. Change of venue. 881. Depositions. 882. Interrogatories to party. 883. Dismissal of appeal. 884. Orders of court ; abuse of discre- tion. 885. Irregularity of the jury or pre- vailing party. 2. Misconduct of the jury or prevailing party. 886. Of the jury must be gross and injurious. 887. Drinking intoxicating liquors. 888. Communicating with other per- sons. 889. Presence in the jury room of of- ficer in charge. 890. Separation of the jury. 891. Viewing the premises. 892. Taking notes of the evidence. 893. Taking out papers. 894. Furnishing law to the jury. 895. Compromise verdict. 896. Communications between court and jury. 897. Misconduct of prevailing party. 3. Accident or surprise which ordinary prudence could not have guarded against. 898. How assigned. 899. At the evidence of the adverse party. 900. At the testimony of his own wit- nesses. 901. Other grounds of surprise. 902. Diligence must have been used to avoid surprise. 903. Must have caused injury. 4. Excessive damages. 904. Applies to actions" for tort. 905. Can not be assigned as error. 906. Damages must be grossly exces- sive. 907. Omission to assess nominal dam- ages. 908. Kemittitur. 5. Error in the assessment of the amount of recovery, whether too large or too small. 909. What included within this specifi- cation. 910. When cause will be reversed on ground that assessment is too large. 911. Finding for more than amount claimed in complaint. 912. Where there is a demurrer to the evidence. 913. Amount of recovery too small. 6. That the verdict is not sustained by sufficient evidencew is contrary to law. 914. Not sustained by sufficient evi- dence. 915. Rule in the supreme court. 916. Verdict contrary to law. 917. All of the evidence must be in the record. XX VI 11 CONTENTS. 7. Newly-diseovered evidence. 918. "What must be shown under this specification. 919. That the evidence has been dis- covered since the trial. 920. Diligence used to procure the evi- dence. 921. Evidence must be material. 922. Cumulative evidence. 923. Impeaching evidence. 924. Evidence must probably produce a different result. 925. Affidavits of party and witness necessary. 926. Evidence must be in the record. 8. Error of law occurring at the trial. 927. Generally. 928. Causes enumerated. 929. Admission or exclusion of evi- dence. 930. Giving or refusing to give in- structions. 931. Question of law reserved. ERRORS NOT GROUND FOR NEW TRIAL. 932. Enumerated. HOW MOTION FOR NEW TRIAL WAIVED. 933. By moving in arrest of judgment. 934. By failing to except at the time. 935. Not waived by motion for a ve- nire de novo. 936. Nor by motion for judgment on special findings. ERROR IN GRANTING OR OVERRULING THE MOTION. 937. New trial granted. 938. New trial refused. 939. Exception must be taken at the time 940. When appeal taken from ruling on the motion. 941. Default; can be no new trial. 942. Effect of consent of parties. TERMS OF GRANTING NEW TRIAL. 943. Costs. 944. Can not be granted on condition. 945. Costs can not be recovered back. 946. Effect of granting new trial. AFFIDAVITS IN SUPPORT OF THE MO- TION. 947. Proof how made. 948. Witness compelled to make affi- davit. 949. Juror's affidavit. 950. Determined by the weight of the evidence. NUMBER OF NEW TRIALS. 951. Unlimited. COMPLAINT FOR NEW TRIAL. 952. The statute. 953. When must be filed. 954. The pleadings. 955. The complaint. 956. The parties. 957. Demurrer. 958. The trial. 959. Appeal. NEW TRIAL AS OF RIGHT. 960. The statute. 961. In what causes may be granted. 962. The motion. 963. Undertaking must be given and new trial granted within one year. 964. The undertaking. 965. The notice. 966. The evidence. 967. Appeal. 968. Effect of order granting. 969. Default ; can be no new trial as o right. VENIRK DE NOVO 970. Defective verdict. 971. Failure to find the whole issue. 972. Finding the evidence or conclu- sions of law. 973. Imperfect answers to special in- terrogatories. 974. Motion must be made before judgment. OTA. Appeal. CONTENTS. CHAPTER XXII. JUDGMENT 0:25 SECTION. 976. Defined. 977. Classification. 978. Final judgments. 979. Interlocutory judgments. '.ISO. Different modes of obtaining judgment. 1. IN ACTIONS COMMENCED BY TRUCKS*. 981. On general verdict. 982. On issue formed in abatement. 983. On special verdict. 984. On special findings and conclu- sions of law. 985. On answer to special interroga- tories. 986. On the pleadings. 987. On demurrer. 988. Where plaintiff is barred as to part of the defendants. 989. Against part of plaintiffs or de- fendants. 990. In actions of ejectment. 991. Where there is a set-off. 992. Judgment on default. 993. On constructive notice. 994. Judgment in rem may be opened in five years. 995. Judgment without notice. 996. Judgment without defaulting the defendant. 2. IN AN ACTION COMMENCED BY 1021. AGREEMENT. 997. Agreed case. 1022. 998. Judgment bv agreement. 3. BY CONFESSION WITHOUT AN ACTION. 999. Offer to allow judgment. 1000. Offer to confess judgment SKCTION. 1001. Confession of judgment. 1002. Confession by attorney. 1003. The judgment. KoKM OK JUDGMENT. 1004. Generally. 1005. Arbitration and award. 1006. Attachment. 1007. Bastimly. 1008. Against executors, administra- tors and guardians. 1009. Foreclosure of mortgages. 1010. Vendors' liens. 1011. Airainst heirs for debt of ances- tor. 1012. Judgment without relief. 1013. Against public officers and others acting in a fiduciary capacity without relief or stay. 1014. On bonds, written undertakings and recognizances. JUDGMENT FOR COSTS. 1015. Recovered in civil actions. 1016. Exceptions recovery under fifty dollars. 1017. In actions for damages solely. 1018. Relators liable for costs. 1019. When apportioned. 1020. Where suits can be joined costs in one only. On appeal from justice of the peace. On offer ti> allow or confess judg- ment. 1023. Claims against estates. 1024. Disclaimer. 1025. Reversal by supreme court. 1026. Adjudged before final judgment XXX CONTENTS. PECTION. 1027. Belongs to the party recovering judgment. 1028. Security for costs. 3029. Form of judgment for costs. HOW DEFECT IN FORM REACHED. 1030. By motion in the court below. 1031. Correcting judgments. 1032. How judgment entered and signed. EFFECT OF JUDGMENT'. 1033. Merges the cause of action. 1034. The lion. 1035. Judgment docket. 1036. Transcript to bind real estate. 1037. Transcript of justice of the peace. 1038. When conclusive collateral at- tack. 1039. Effect of appeal from judg- ment. REPLEVIN BAIL. 1040. The statute. 1041. Is a judgment confessed. 1042. What judgments repleviable. 1043. How entered. 1044. Where part of judgment cred- itors are sureties. ARREST OF JUDGMENT. 1045. For what causes judgment may be arrested. 1046. Goes to the whole complaint. 1047. The motion. 1048. Effect of arresting judgment. SECTION. REVIEW OF JUDGMENTS. 1049. Causes for review. 1050. The parties. 1051. The pleadings complaint for error of law. 1052. The trial. 1053. The bond. 1054. The judgment. 1055. When proceeding to review al- lowed. 1056. Effect of review. VACATING JUDGMENTS. 1057. How and for what causes. SATISFACTION OF JUDGMENTS. 1058. By lapse of time. 1059. By payment. 1060. By levy of execution. 1061. By the sale of property. 1062. Entry of payment, release or satisfaction. 1063. Action to compel an entry of sat- isfaction. REVIVOR OF JUDGMENTS. 1064. Leave to issue execution after ten years. 1065. By or against executors and ad- ministrators unnecessary. 1066. Kevivor upon death of judgment defendant. 1067. Defenses in actions to revive ACTIONS ON JUDGMENTS. 1068. Are debts of record, and mav be collected by suit. 1069. Di fences. OP INDIANA CODE OF 1852 AND REVISED STATUTES OP 1881. Old Code. Rev. Stat 249 250 Old Code. 50 51 Rev. Stat. 339 340 Old Code. 99 100 Rev. Stat. 396 397 251 52 341 101 398 252 53 342 102 399 281 54 343 103 856 276 55 344 104 857 253 56 347 105 858 254 57 348 106 859 Repealed 255 58 59 349 350 107 108 860 861 256 60 351 109 862 257 61 352 110 863 258 62 354 111 864 259 63 277 111 865 260 64 346 113 866 261 65 355 114 867 262 66 356 115 868 268 67 357 116 869 269 68 400 117 870 270 69 401 118 871 271 70 278 119 872 272 71 279 120 873 273 72 280 121 874 263 73 358 122 875 264 74 383 123 876 265 75 360 124 877 266 76 361 125 878 307 77 382 126 879 308 78 362 127 880 309 79 363 128 1266 310 80 364 129 1267 311 81 366 130 1268 312 82 368 131 1269 314 83 369 132 1270 315 84 370 133 1271 316 85 371 134 1272 317 86 372 135 1273 318 87 373 136 1147 319 88 374 137 1148 318, sub. 4, 5 320 89 90 375 376 138 139 1149 1150 322 91 377 140 1151 600 92 378 141 1152 601 93 379 142 1153 602 94 391 143 1154 335 95 392 144 1155 336 96 393 145 1156 337 97 394 146 1157 838 118 395 147 1158 (xxxi) XXX11 PARALLEL SECTIONS. Old Code. 148 149 Rev. Stat. 1159 1160 Old Code. 209 210 Rev. Stat. 417 292 Old Code. 270 271 Rev. Stat. 443 446 150 1161 211 293 272 447 151 1162 212 294 273 450 152 1163 213 295 274 451 153 1164 214 367 275 452 154 1165 215 296 276 453 155 1166 216 297 277 456 156 913 217 298 278 457 157 914 218 299 279 458 158 915 219 300 280 459 159 916 220 301 281 460 160 917 221 302 282 461 161 918 222 567 283 462 162 919 223 303 284 467 163 920 224 304 285 468 164 921 225 305 286 472 165 922 226 267 287 473 166 923 227 306 288 474 167 168 Repealed 924 228 229 .Repealed 484 289 290 475 476 169 925 230 487 291 477 170 926 231 488 292 481 171 927 232 489 293 483 172 173 928 929 233 234 490 491 294 295 Repealed 509 174 930 235 492 296 510 175 931 236 494 297 511 176 932 237 495 298 512 177 178 179 - 180 181 933 934 935 93(5 937 238 239 240 241 242 Repealed Repealed Repealed Repealed 505 299 300 301 302 303 513 Repealed Repealed Repealed 359 182 938 243 506 304 478 183 9S9 244 507 305 . 479 184 940 245 418 306 480 185 941 246 419 307 520 186 943 247 420 308 521 187 944 248 421 309 523 188 945 249 422 310 524 189 946 250 423 311 529 190 947 251 424 312 530 191 948 252 425 313 531 192 949 253 426 314 532 193 950 254 427 315 516 194 951 255 428 316 406 195 952 256 429 317 407 196 95 ;5 257 430 318 408 197 954 258 431 319 517 198 955 259 432 320 401) 199 1222 260 433 321 518 200 1223 261 ' 434 322 410 201 1224 262 435 323 411 202 203 1225 1226 263 264 436 437 324 325 5J:i 535 204 1227 265 438 326 536 205 1228 266 439 327 537 206 1229 267 440 328 538 207 412 268 441 329 539 208 413 269 442 330 540 PARALLEL SECTIONS. xxxn Old Code. Rev. Stat. | Old Code. Rev. Stnt. Old Code. 331 541 392 387 453 332 542 393 388 454 333 543 394 389 455 334 644 896 390 456 335 545 396 590 457 336 546 397 591 458 337 547 398 592 459 338 548 399 593 460 339 549 400 594 461 340 550 401 595 462 341 551 402 689 463 342 625 403 596 464 343 626 404 599 465 344 627 405 674 4G6 345 628 406 675 467 346 629 407 679 468 347 630 408 676 469 348 631 409 680 470 349 556 410 681 471 350 557 411 682 '472 351 658 412 683 473 352 659 413 686 474 353 660 414 609 475 354 561 415 779 476 355 662 416 780 477 356 563 417 684 478 357 652 418 685 479 358 402 419 687 480 359 Repealed 420 690 481 360 403 421 691 482 361 404 422 692 483 362 323 423 693 484 363 333 424 694 485 364 334 425 695 486 365 353 426 696 487 366 570 427 697 488 367 673 428 698 489 368 668 429 699 490 369 669 430 700 491 370 664 431 701 492 371 665 432 702 493 372 666 433 719 494 373 571 434 720 495 374 672 435 721 496 375 384 436 722 497 376 679 437 723 498 377 680 438 724 499 378 674 439 725 500 379 575 440 726 501 380 385 441 727 502 381 576 442 728 503 382 345 443 729 504 383 586 444 730 605 384 687 445 732 506 385 688 446 733 507 386 5-33 447 734 608 '387 554 448 735 509 888 555 449 736 510 389 614 450 737 611 390 615 451 738 612 391 380 452 739 613 Rev. Pint. 740 741 742 748 744 745 746 747 748 749 753 7.34 755 756 757 750 751 731 688 763 764 758 759 760 761 781 762 782 783 784 785 780 787 788 789 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 808 809 810 811 812 813 814 682 XXXIV PARALLEL SECTIONS. Old Code. Rev. Stat. Old Code. Rev. Stat. O1<1 Code. Rev. Stat. 514 583 575 659 636 1101 515 584 576 646 637 1102 516 585 577 647 638 1103 517 677 578 648 639 1104 518 815 579 666 640 1105 519 816 580 658 641 321 520 817 581 657 642 621 521 818 582 656 643 622 522 819 583 654 644 623 523 820 584 653 645 624 524 821 585 668 646 Repealed 525 822 586 615 647 5293 526 752 587 616 648 5294 527 608 588 617 649 5295 528 610 589 618 650 5296 529 611 590 619 651 5297 530 464 591 620 652 5298 531 1220 592 1050 653 5299 532 689 593 1051 654 5300 533 669 594 1053 655 5277 534 670 595 1054 656 5278 535 671 596 1055 657 5279 530 672 597 1056 658 5280 537 673 598 1058 659 52.S1 538 2364 599 1059 660 5282 539 612 600 1060 661 5283 540 613 601 1064 662 5284 541 614 602 1065 663 5285 542 1015 603 1066 664 1178 543 1016 604 1067 665 1179 544 1017 605 1052 666 1180 545 1018 606 1057 667 1181 546 1019 607 1068 668 1182 547 1020 608 1069 669 1183 548 1021 609 1061 670 1184 549 1022 610 1062 671 1185 550 632 611 1070 .672 I'JIO 551 635 612 1071 673 1211 552 636 613 1072 674 1212 553 637 614 1063 675 1213 554 Repealed 615 1074 676 1214 555 638 616 1075 677 1215 556 640 617 1076 678 1216 557 651 618 1077 679 1217 658 649 619 1078 680 1218 559 650 620 1079 681 313 560 652 621 1080 682' Repealed 661 633 622 1081 683 881 562 634 623 1082 684 883 563 641 624 1083 685 884 564 642 625 1084 686 885 565 643 626 Repealed 687 886 566 644 627 286 688 887 667 645 628 289 689 888 668 655 629 290 690 889 669 661 630 291 691 890 570 660 631 101)5 692 891 671 662 632 1096 693 892 572 663 633 1097 694 893 573 664 634 1099 695 894 574 665 635 1100 696 895 PARALLEL SECTIONS. XXXV Old Code. Rev. Stat. 1 Old Code. Rev. Stat. Old Code. Rev. Stat. ?697 896 733 1127 769 965 698 897 734 1128 770 966 699 898 735 1129 771 967 700 899 736 1130 772 968 701 900 737 1107 773 969 702 901 738 1167 774 970 703 902 739 1168 775 971 704 903 740 1169 776 972 705 904 741 1170 777 973 706 905 742 1171 778 974 707 906 743 1172 779 975 708 907 744 1173 780 976 709 908 745 1174 781 977 710 909 746 1175 782 282 711 910 747 1176 783 283 712 911 748 1177 784 284 713 912 749 1131 785 360 714 1106 750 1132 786 274 715 1108 751 1133 787 1280 716 1109 752 1134 788 285 717 mi* 753 1135 789 1281 718 1112 754 1136 790 1221 719 1113 755 1137 791 275 720 1114 756 1138 792 482 721 1115 757 1139 793 1332 722 1116 758 1140 794 Repealed 723 1117 759 1141 795 1282 724 1118 760 1142 796 Repealed 725 1119 761 1143 797 1285 726 1120 762 1144 798 1286 727 1121 763 1145 799 1287 728 1122 764 1146 800 1288 729 1123 765 961 801 1289 730 1124 766 962 802 Repealed 731 1125 767 903 803 1290 732 1126 768 964 INDIANA PRACTICE. CHAPTER I. COURTS OF INDIANA. SECTION . SECTION 1. The constitution and statutes. 3. Courts now existing. 2. Criminal circuit courts; act creating constitutional. I. The constitution and statutes. The constitution provides that the judicial power of the state shall be vested in a supreme court, in circuit courts, and in such other courts as the general assembly may establish. 11 Under the constitution as originally adopted the right of the legis- lature to establish other courts was limited to courts inferior to the cir- cuit court ; b but this section was amended in 1881 so that the power to establish other courts is not thus limited. Under the original section of the constitution common pleas courts were established by the legislature and given concurrent jurisdiction with the circuit courts in certain cases, and exclusive jurisdiction in certain other cases. But of late years it seems to have been the policy of our law-makers to reduce the number of courts in the state. With this view an act was passed in 1873 by which the common pleas court was abolished, and the business thereof transferred to the circuit courts. d By this act most of the counties of the state were left with but one court of general jurisdiction. In 1865, an act was passed providing for the organization of crimi- nal circuit courts, and on the same day an act creating a criminal cir- cuit court in the county of Marion was passed. 6 By an act approved March 11, 1867, the act above referred to was (a) Const, of Indiana, art. 7, 1 ; R. (c) R. S. 1881, 161. S. 1881, 161 ; Clem v. The State, 33 (d) 1 R. S. 1876, p. 390, 79. Ind. 418 ; Ex parte Wiley, 39 Ind. 546. (e) 1 R. S. 1876, p. 391, chap. 90. (b) 1 R. S. 1876, p. 36, \ 1. (1) 2 COURTS OF INDIANA. [CHAP, amended by creating criminal courts in each of the counties of Allen and Tippecauoe/ By an act approved March 1, 1869, a criminal circuit court was es- tablished in the county of Vigo. g Criminal circuit courts were established in the counties of Floyd and Clark in 1869. h % And in the counties of Vanderburgh and Jefferson in the same year.' 2. Criminal circuit courts ; acts creating constitutional. When the first of the acts creating the criminal circuit in Marion county was passed its constitutionality was much questioned, but the supreme court, in the case of Combs v. The State, held that the act pro- viding for the organization of criminal circuit courts in all counties having ten thousand voters, and the act constituting the county of Marion the sixteenth judicial circuit, were constitutional^ This de- cision has been adhered to in later cases. k In 1871, an act was passed providing for the establishment of su- perior courts in any county wherein is situated an incorporated city containing a population of not less than forty thousand inhabitants. 1 3. Courts now existing. We have the following courts in Indiana, including those above named : 1. The supreme court; 2. The circuit court; 3. The superior court; 4. The criminal court; 5. The court of justices of the peace; 6. The mayor's court; 7. The commissioner's court ; 8. The city court. The court of common pleas was abolished as a matter of economy, but the result has been the reverse of that intended. In the counties where there is but the one court, business of all kinds, civil, criminal, and probate, is brought together within the jurisdiction of that court. Confusion and delay have been the inevitable result. In this way, and by reason of the increase in the number of circuits, and the in- (f ) IE. S. 1876, p. "93, chap. 91. 22. Since the constitution was amend- (g) 1 K. S. 1876, p. 394, chap 92. ed authorizing the establishment of (h) 1 R S. 1876, p. H96, chap. 93. other courts, an act has been passed (i) 1 R. f 5 . 1876. p. 398, chap. 94. establishing criminal courts. 11. Stat- ^j) Combs v. The State, 2. O'Brien, 24 Ind. 325; Pet. 657. Lantz v. Maffett, 102 Ind. The Pendleton, etc., T'p v. Barnard, 23; Quarl v. Abbett, 102 Ind. 233. 40 Ind. 146; Alexander v. The Mc- (b) Waltz v. Borroway, 25 Ind. 380; Cordville, etc., G. E. Co., 44 Ind. 436 ; Houk v. Barthold, 73 Ind. 21; Lee v. Cooper v. Sutherland, 3 Iowa, 114; Templeton, 73 Ind. 315; Post, 388, Dempster v. Purnell, 3 M. & G. 375; 474. Cason v.' Cason, 31 Miss. 578, 592; The () Warring v. Hill, 89 Ind. 497. Board, etc., .v. Markle, 46 Ind. 90, 112; (c) The Board, etc., v. Markle, 46 Hord v. Elliot, 33 Ind. 220; Argo v. Ind. 96; Cobb v. The State, 27 Ind. Barthand, 80 Ind. 63. II.] JURISDICTION. 5 recital in the record of such facts may be shown to be false, and some of the courts hold that they are not even prima facie evidence of the truth, but they must be proved by evidence aliunde." In the cases of The State v. Elliot and Weston v. Lumley, the same court seems to have taken a different view of the question as to the force of the recital in the record. It was expressly held in both of these cases that where the jurisdictional facts appear on the face of the record, the record is conclusive against all collateral attacks. It certainly can not be regarded as sound legal doctrine that the record of an inferior court is conclusive as to the question of jurisdic- tion, even where its jurisdiction is attacked collaterally. If the facts necessary to such jurisdiction do not in fact exist, the court has no power to make any such record or to take any step in the cause. The record would be a nullity. But the authorities in this state clearly es- tablish the rule that such a finding is conclusive against a collateral attack. 6 6. When question of jurisdiction may be raised. It is well settled by authority that the question of the jurisdiction of a court may be raised in a collateral proceeding. But the Supreme Court of Indiana has decided that " where the jurisdiction of an inferior court depends on a fact which said court is required to ascertain and settle by its decision, such decision is conclusive except in a direct proceeding to reverse or set aside the judgment/ The finding of the fact must, how- ever, be necessary at the time it is so found to evoke the exercise of jurisdiction, and if it is not so. found it can not estop those who are affected by such order from denying the existence of such fact. It is the finding of the fact that renders the decision conclusive." 8 7. Constitutional jurisdiction can not be taken away by legislature. If exclusive jurisdiction is conferred upon one court by the constitution, the legislature can not confer such jurisdiction upon any other court ; but where the constitution confers j urisdiction upon one court without making such jurisdiction exclusive, the legislature may confer on other courts the same powers and functions. The constitution of the State of Indiana does not confer exclusive jurisdiction upon any of the courts of the state, but confers upon the legislature the power to (e) The O. & M. R. R. Co. v. Shultz, v. The city of Evansville, 15 Ind. 395; 31 Ind. 150; Taylor v. Connor, 7 Ind. Hornaday v. The State, 43 Ind. 306; 115 ; Porter v. Stout, 73 Ind. 3 ; Mun- Rhodes v. Piper, 40 Ind. 369. cie v. Joest, 74 Ind. 409. (g) Rhodes v. Piper, 40 Ind. 369 ; (f) The Evansville, etc., R. R. Co. Muncie v. Joest, 74 Ind. 409; Newman v. Manning, 89 Ind. 422. 6 JURISDICTION. [CHAP. regulate the jurisdiction of the several courts of superior as well as in- ferior jurisdiction. 11 But while the legislature may regulate and limit the jurisdiction of the supreme court and circuit courts, they are ex pressly provided for in the constitution and can not be abolished.' This seems to be true also of justices of the peace, although Mr. Bus- kirk, in his valuable work on practice, says: " The power to create courts inferior to the circuit court is expressly given, but is discretion- ary and not mandatory." j The constitution provides in express terms that a competent number of justices of the peace shall be elected by the voters in each township in the several counties. They shall continue in office four years, and their powers and duties shall be prescribed by law. k 8. Concurrent may be exercised by court first taking ju- risdiction. "Where concurrent jurisdiction exists in different courts, the court first assuming jurisdiction must have the exclusive power to dispose of the particular cause or proceeding, and " courts can not interfere with the judgments or decrees of other courts of concurrent jurisdiction." l g. Concurrent with courts of other states. The courts of this state have concurrent jurisdiction with the courts of the State of Kentucky, of all actions, civil or criminal, arising on the Ohio river where the two states possess the opposite shores, and with the courts of the State of Illinois of all actions arising on the Wabash river so far as that river forms the boundary between the two states. m And courts of this state have jurisdiction to prevent a wrong to a citizen of another state by an act committed upon land in this state. (h) Const, of Ind., art. 7, ? 1-8; R. (o) Burk v. Sitnonson, 104 Ind. 173. S. 1881, \\ 161-168. (1) Estee's Plead, and Forms, 18. (i) Const., art. 7. 1 ; R. S. 1881, (m) Const, of Ind., art. 14, % 1, 2; 161; Busk. Prac. 2. R. S. 1881, g 221, 222; 1 Rev. Laws of ( j) Busk. Prac. 2. Va. Vol. 1. 59 ; R. S. 1881, 1579, 308; (k) Const., art. 7, 14; R. S. 1881, Sherlock v. Ailing, 44 Ind. 184; Car- 174; Iglehart's Treatise, 1. lisle v. The State, 32 Ind. 66. m.] JURISDICTION OF COURTS. CHAPTER III. JURISDICTION OF THE COURTS OF INDIANA. SECTION*. 10. How regulated. OF THE SUPREME COURT. 11. Appellate jurisdiction. CIRCUIT COURTS. 12. General jurisdiction. 13. Is concurrent and exclusive. 14. Exclusive jurisdiction. 15. Of common pleas transferred to circuit court. 16. In counties having no superior court. 17. Concurrent jurisdiction. 18. Where subject-matter is in two or more counties. 19. Appellate jurisdiction. 20. From boards of county commis- sioners. 21. From mayors' and city courts. 22. From surveyors and awards of ar- bitrators. SECTION. JUSTICES OF THE PEACE. 23. Have only statutory jurisdiction. 24. In misdemeanors. 25. In felonies. 26. In assault and battery. 27. Territorial jurisdiction. 28. Territorial civil jurisdiction. 29. Amount. 30. How amount of claim determined. 31. Exclusive jurisdiction. MAYORS OF CITIES. 32. Generally. CITY COURTS. 33. Concurrent jurisdiction. COUNTY COMMISSIONERS. 34. Judicial and legislative. 35. Exclusive jurisdiction. 10. How regulated. In Indiana, the jurisdiction of the several courts of the state is entirely governed by the legislature, except that the constitution provides that the " supreme court shall have jurisdiction co-extensive with the limits of the state in appeals and writs of error, under such regulations and restrictions as may be provided by law."* OF THE SUPREME COURT. 11. Appellate jurisdiction. It is not the intention to give more than a mere summary of the jurisdiction of the supreme court, as Mr. Buskirk's able work on practice in that court has made a more extended consideration of its powers and duties unnecessary. By an act approved May 13, 1852, it was provided that the supreme (a) Const., irt. 7, 4; R- S. 1881, \ 164. 8 JURISDICTION OP COURTS. [CHAP. court should consist of four judges, and should have jurisdiction in ap- peals co-extensive with the state. b This act was amended December 16, 1872, by increasing the number of judges to five, but the jurisdic- tion of the court was not changed. Writs of error Avere abolished by the code of 1852. d This direct provision abolishing writs of error has been omitted in the revision of 1881, e but only one mode is provided for removing causes from inferior courts to the supreme court, and that is by appeal/ Where the action is originally brought before a justice of the peace or mayor of a city, no appeal lies to the supreme court where the amount in controversy, exclusive of interest and costs, does not exceed fifty dollars, except in cases originating before a justice of the peace or mayor of a city involving the validity of an ordinance passed by an incorporated town or city. Where the validity of such an ordinance is involved, there is no limitation of the right of appeal. Under the old code the limitation was ten dollars, 8 which amount was increased in the revised code of 1881 to fifty dollars. 11 And the amount of the judg- ment in the court from which the appeal is taken to the supreme court must determine the amount in controversy.' This limitation of the right of appeal only applies to actions originating before justices of the peace and mayors of cities. A judgment for any amount, no matter how small, may be appealed from where the cause originates in the circuit or superior courts, and there is no other limitation of the right of appeal to the supreme court. The legislature has power to regulate the appellate jurisdiction of the supreme court, and to confer upon such court original jurisdiction. The legislature has not exercised the power of conferring original juris- diction upon the supreme court, and it has no such jurisdiction further than to exercise certain powers in aid of its jurisdiction as an appellate court. k An act was passed in 1881 authorizing the appointment of five com- missioners of the supreme court, whose duties are similar to those of the judges, but the act does not affect the jurisdiction of the court. 1 (b) 2 G. & H. Stat. p. 1. (i) Overton v. Overton, 17 Ind. 226; (c) 2 11. S. 1876, p. 1. Tripp v. Elliott, 5 Blkf. 168; Bogart (d) 2 R. S. 1876, p. 238, 550. u. The City of New Albany, 1 Ind. 38; (e) R. S. 1881, 632. Morton Gravel Road Co. v. Wysong, 51 (f) Busk. Prac. 8. Ind. 4. (gJF 2 R. S. 1876, p. 238, 550. (k) R. S. 1881, 1302, 1303. (h) R. S. 1881, 632. (1) Acts 1881, p. 92. HI.] JURISDICTION OF COURTS. 9 CIRCUIT COURTS. 12. General jurisdiction. The circuit court is one of general ju- risdiction. It has no constitutional jurisdiction, the legislature having full power to change, regulate, or limit its jurisdiction at will. The legislature has conferred upon the circuit court exclusive jurisdiction in certain cases; and before the common pleas court was abolished, that court was given exclusive jurisdiction in certain other cases. By the act of March 6, 1873, the common pleas court was abolished, and such jurisdiction as was then exercised by that court was conferred upon the circuit courts of the state. m By force of this act, such jurisdiction as existed exclusively in the common pleas court prior to its enactment became the exclusive juris- diction of the circuit court. (1) In those counties of the state in which no superior or criminal cir- cuit courts have been established, the circuit court has exclusive juris- diction, except in cases where jurisdiction has been expressly conferred upon justices of the peace, mayors of cities, county commissioners, and city courts. 13. Is concurrent and exclusive. Certain changes in the juris- diction of the circuit court have been effected by the establishment of superior and criminal courts in some of the counties. In counties where the criminal courts are established, the criminal jurisdiction of the cir- cuit court has been taken away, and exclusive jurisdiction in such cases conferred upon the criminal courts ; and in the counties where supe- rior courts have been established, such courts have been given concur- rent jurisdiction with the circuit courts where the jurisdiction of the circuit court was exclusive when the common pleas court was in exist- ence, but still leaving to the circuit courts exclusive jurisdiction in certain cases. The jurisdiction of the circuit court, then, is appellate and original, and either exclusive or concurrent with the superior courts, and courts of justices of the peace, mayors of cities, and city courts. Its juris- diction is also both civil and criminal, except in the counties where criminal courts exist. 14. Exclusive jurisdiction. The circuit court has exclusive ju- risdiction in all the counties of the state, except those in which criminal courts have been established, in all felonies. In those counties where criminal courts now exist, the circuit court (m) 2 K.S.I 876, p. 390, 79; R. S. (n) R. S. 1881, \ 1314. 1881, 1335. (1) Hillenberg v. Bennett, 88 Ind. 540. 10 JURISDICTION OF COURTS. [CHAP. has no criminal jurisdiction, the same having been conferred on the former. In the county of Marion, the circuit court has exclusive original ju- risdiction of all cases of slander. p It has also exclusive jurisdiction in all cases where the common pleas court formerly had exclusive juris- diction, except in actions against executors and administrators. The act of the legislature establishing the superior court in Marion county gave that court concurrent jurisdiction with the circuit court in all cases except slander, and concurrent jurisdiction with the common pleas court in all cases except such causes of which the common pleas court then had original exclusive jurisdiction, except in actions by and against executors and administrators. q The common pleas court then had original exclusive jurisdiction in all matters relating to the probate of last wills and testaments, grant- ing of letters testamentary, of administration and guardianship ; of all matters relating .to the settlement and distribution of decedents' es- tates, and the personal estates of minors ; all actions against executors and administrators to authorize guardians to sell and convey real estate of their wards, and the appointment of guardians of persons of un- sound mind ; the examination and allowance of the accounts of exec- utors and administrators and of the guardians of minors/ By an act approved April 7, 1881, the jurisdiction of the circuit court is denned, and previous acts relating to such jurisdiction are re- pealed. The act provides : " Such court shall have original exclusive juris- diction in all cases at law and in equity whatsoever, and in criminal cases and actions for divorce, except where exclusive or concurrent ju- risdiction is or may be conferred by law upon justices of the peace. It shall also have exclusive jurisdiction of the settlement of decedents' estates and of guardianships : Provided, however, that in counties in which criminal or superior courts exist, or may be organized, nothing in this section shall be construed to deprive such courts of the jurisdic- tion conferred upon them by law. And it shall have such appellate jurisdiction as may be conferred by law ; and it shall have jurisdiction of all other causes, matters, and proceedings, where exclusive jurisdic- tion thereof is not conferred by law upon some other court, board, or officer." 9 It was held in Ex parte Shockley, 4 that the common pleas court of (o) R. S. 1881, 1369. (r) 2 G. & H., p. 20, 4; William- (p) R. S. 1881, \ 1351. son v. Miles, 25 Ind. 55; Hillenberg v. (q) 2 R. S. 1876, p. 24, 10 ; R. S. Bennett, 88 Ind. 540. 1881, 2217. (s) R. S. 1881,? 1314. (t) Ex purte Shnckley, 14 Ind. 413. HI.] JURISDICTION OF COURTS. 11 the county in which letters of administration or guardianship had been granted had exclusive jurisdiction of applications for sales of real es- tate by such administrators or guardians, even where the real estate was situate in another county, but this case was expressly overruled in a later case," in which it was held that the common pleas court had exclusive jurisdiction, but not the court of the county in which the let- ters were granted.* 15. Of common pleas transferred to circuit court. By the act abolishing the common pleas court, approved March 6, 1873, the ju- risdiction of that court was transferred to and vested in the circuit court. w It follows that in the county of Marion the circuit court has such exclusive jurisdiction as was formerly vested in the court of common pleas, except in actions against executors and administrators. In the county of Tippecanoe the circuit court has no exclusive jurisdiction. The act by which the superior court of that county was established, gave that court concurrent jurisdiction with the circuit court in all civil causes. 1 16. In counties having no superior court. In all counties in the state where no superior courts exist the circuit court has original ex- clusive civil jurisdiction of all cases of slander, libel, breach of mar- riage contract, and when the title to real estate shall be in issue, and in all other civil actions where the amount involved is over two hundred dollars, except that a defendant may confess judgment for any sum not exceeding three hundred dollars in a justice's court, and in all cases for bastardy and actions against railroads for dam- ages, where the amount of the damages do not exceed fifty dollars, and in all cases where the common pleas court formerly had exclusive jurisdiction. y In those counties where no criminal courts exist the circuit court has original exclusive jurisdiction in all felonies and of all misdemeanors where imprisonment must be a part of the penalty, 2 except that mayors of cities may imprison for not exceeding thirty days. 8 In cases of misdemeanor, although justices of the peace have juris- diction concurrent with the circuit court in all misdemeanors not pun- (u) Williamson v. Miles, 25 Ind. 55. (w) R. S. 1881, 1335, 1336, 1337; But see the later case of Vale v. Rine- Williams v. Perrin, 73 Ind. 57. Imrt, 105 Ind. 6. fx) 1 R. S. 187G, p. 401, 10. (v) Wheeler v. Calvert, 25 Ind. 365; (y) R. S. 1881, ? 1314, 1336. The Jeffersonville R. R. Co. v. Swaynp, (z) R. S. 1881, 1314, 1637. 26 Ind. 477. (a) R. S. 1881, 3062. 12 JURISDICTION OF COURTS. [CHAP. ishable by imprisonment, they have no power to assess a greater fine than twenty-five dollars, and where the justice finds that a less fine than twenty-five dollars would be an inadequate punishment, it is his duty to certify the cause to the circuit court where the cause is tried, as if originally brought in that court. b 17. Concurrent jurisdiction. The circuit court has concurrent ju- risdiction with courts of justices of the peace, in all civil causes where the amount involved does not exceed two hundred dollars, except in actions against railroad companies for animals killed where the damages do not exceed fifty dollars, d and in actions for bastardy. City courts have the same jurisdiction as justices of the peace in civil cases. 6 In the county of Tippecanoe the circuit court has concurrent juris- diction with the superior court of that county in all civil causes/ In the county of Vigo the superior court of that county has original concurrent jurisdiction in civil cases, including actions by or against executors, guardians, and administrators, but the superior court has no jurisdiction in matters of probate or the settlement of decedents' es- tates. g In the county of Marion the circuit court has concurrent jurisdiction with the suporior court of that county in all civil cases, except slander and such cases of which the common pleas court had exclusive original jurisdiction February 15, 1871. The jurisdiction in cases by and against executors and administrators is concurrent with the superior court in Marion county. h The circuit court has no jurisdiction in misdemeanors where the punishment can not exceed a fine of three dollars. 1 But in civil cases there is no limit to the jurisdiction of the circuit court as to the amount involved. The court has jurisdiction, no matter how small the amount may be. But where a party brings his action in that court*, where the amount claimed is less than fifty dollars, he can not recover costs when the action is for money demands on contract. j This provision does not apply to actions by executors or administrators. 1 18. Where subject-matter is in two or more counties. Where the subject matter of an action is situate in two or more coun- (bl R. S. 1881, I 1G3G. (h) 2 R. S. 1876, p. 6, 5; 2 Ib. 24, (c) 2 R. S. 1876, p. G05, 10; \\. S. 10. 1881, 1314, 1433, 5-226. (i) R. S. 1881, 1637. (d) R. S. 1881, 4026. (j) R. S. 1881, 591; Bosworth v. (e) R. S. 1881, 3206. The Wayne Pike Co., 101 Ind. 175. (f) 2 R. S. 1876, p. 401, ? 10. (*) Hillenberg v. Bennett, 88 Ind. (g) R. S. 1881, 1351. 540. HI.] JURISDICTION OF COURTS. 13 ties, the court first taking cognizance thereof shall retain jurisdiction to the exclusion of the courts of the other counties. k The jurisdiction as to territory is confined to the respective counties in which the several circuit courts are held. 1 19. Appellate jurisdiction. Prior to the enactment abolishing the common pleas court, the circuit court had appellate jurisdiction of certain cases from that court, of which it now has original jurisdic- tion. It has now appellate jurisdiction of all cases, civil and criminal, of which the courts of justices of the peace have original jurisdiction, and also of all cases of which county commissioners have original jurisdic- tion, except where they act in their legislative capacity. In all cases where the board of county commissioners have jurisdiction as a court, their action may be appealed from to the circuit court." 1 In counties having superior courts the appellate jurisdiction, in civil cases is made concurrent with those courts. 11 20. From boards of county commissioners. It was held by the supreme court, in a long line of authorities, that where specific pow- ers were given the board of county commissioners by a special statute, there could be no appeal from any act of theirs under such statute, un- less the special statute itself expressly provided for an appeal ; and that section 31 of the general act creating such boards and prescribing their duties could not confer a right of appeal except in cases arising under that statute. The same court has since held that in all cases where the right to determine the question is not exclusively vested in the board of county commissioners, an appeal. will lie under the general law governing such board, unless the special statute, conferring jurisdiction on the board expressly forbids such appeal. p The authorities upon this point are numerous and conflicting, but the later decisions, which must be considered as the law, at least for (k) R. S. 1881, I 1318; Holmes v. (o) Bosleyr. Ackelmire, 39 Ind.536; Taylor, 48 Ind. 169. The Board, etc. v. Smith, 40 Ind. 61; (1) R. S. 1881, \\ 1313, 1314. Turner v. Rehm, 43 Ind. 208; Allen 7-. (m) R. S. 1881, 2 1499, 5769, 5771, Hostetter. 16 Ind. 15. 5772; Hanna v. The Board, etc, 29 (p) Alexander v. The McCordsville, Ind. 170; Fordyce v. The Board, etc., etc., Gravel Road Co., 44 Ind. 43l>; 28 Ind. 454; Wright, Auditor, etc., v. The State ex rel. Reynolds v. The Harris, 29 Ind. 438; Bosley v. Ackel- Board, etc.. 45 Ind. 501; James r. The mire, 39 Ind. 536. Greenboro, etc., Turnpike Co., 47 Ind. (n) R. S 1881, || 1314, 1351. 379. 14 JURISDICTION OF COURTS. [CHAP. the present, give the circuit court jurisdiction of appeals from the board of county commissioners, although the special statute under which the action arose gives no such right, unless there is something in the stat- ute showing that it was intended by the legislature that the decision of the board should be final. (1) 21. From mayors' and city courts. The circuit court has ap- pellate jurisdiction of all cases of which mayors of cities have juris- diction, q and of all causes of which judges of cities have original juris- diction. 1 22. From surveyors and awards of arbitrators. It has ju- risdiction also of appeals from surveys made by a surveyor. 8 And from the award of arbitrators to assess damages, sustained in consequence of the location or construction of any railroad.' JUSTICES OF THE PEACE. 23. Have only statutory jurisdiction. Courts of justices of the peace, being inferior courts, created by statute, have only such jurisdic- tion as is expressly conferred upon them by statute." 24. In Misdemeanors. They have original exclusive jurisdic- tion of criminal causes where the punishment for the offense charged can not exceed a fine of three dollars ; v and concurrent jurisdiction with the circuit court of all cases where the punishment may be a fine only ; w but a justice of the peace has no power to imprison or to assess a fine exceeding twenty-five dollars ; and where a justice trying a cause where the offense may be punished by imprisonment finds that the of- fense is of such a character that the defendant should be imprisoned, or where the fine should exceed twenty-five dollars, it is his duty to certify the cause to the circuit court. 1 25. In felonies. Justices have jurisdiction to examine and hold to bail persons charged with felonies. 7 The statute under which justices of the peace are given jurisdiction (q) R. S. 1881, 3062. (v) R. S. 1881, 1637. (r) R. S. 1881, 3216. (w) R. S. 1881, 1637; The State v. (s) R. S. 1881, I 5955. Creek, MS. case No. 9,900, January 10, (t) R. S. 1881, \ 3907. 1882. (u) Gregg v. Wooden, 7 Ind. 499; (x) R. S. 1881, ? 1636, 1637, 5322. Wakefield v. The State, 5 Ind, 195; (y) R. S. 1881, 1634; Hawkins v. Matlock v. Strange, 8 Ind. 57 ; Wiley The State ex rel , 24 Ind. 288. V.Strickland, 8 Ind. 453; Hawkins v. (>) Wayraire v. Powell. 105 Ind. 328. The State ex rel., etc., 24 Ind. 288. III.] JURISDICTION OF COURTS. 15 in felonies is very general and uncertain in its terms, and has given rise to much difficulty in determining what is their duty in such cases, and what the judgment of the justice should be. But in the case of Hawkins v. The State it was held that it was not necessary that the justice should render a judgment of guilty in such a case, his duty being "merely to hold to bail." The result of this decision is, that although the court is one of record, its record need not disclose what the finding of the court is, but merely the fact that the justice held the defendant to bail. 26. In assault and battery. The statute expressly forbids jus- tices of the peace trying cases of assault and battery or assault, " unless the injured party be present as a witness at the trial, or having been subpoenaed, refuses to attend, and can not be compelled to attend by attach- ment for any other cause than sickness or inability to attend by reason of Hie injuries he may have received from the defendant, or unless a subpoena issued for the injured party shall have been returned ' not found;'" and provides that " no trial shall be had upon a complaint for an affray, unless some person who saw the same shall be present as a witness, or having been sub- poenaed, refuses to attend." 2 In such case, the record of the justice should show the facts required by the statute. The supreme court held, under the act of 1355, that a failure on the part of the justice to comply with the statute in making up his record could not affect the rights of the defend- ant, and that a trial by the justice would bar another prosecution, al- though the record did not disclose the facts, as required by the statute,* but the present criminal code provides that such judgments shall be void. 27. Territorial jurisdiction. The criminal jurisdiction of a jus- tice of the peace as to territory is co-extensive with the county. b 28. Territorial civil jurisdiction. The civil jurisdiction of justices of the peace is confined, as a general rule, to their respective townships. In actions commenced by capias ad respondendum d and actions for bastardy, their jurisdiction is co-extensive with the county. In actions of replevin, their jurisdiction extends to the township in which the defendant resides, and the township in which the property is either taken or detained. 6 (z) R. S. 1881, 1638. Graham v. Klyla, 29 Ind. 432; B. S. (a) The State v. George, 53 Ind. 434. 1881, 1551. (b) K. S. 1881, 1637; McDonald's (e) Test v. Small, 21 Ind. 127; Bed- Treatise, 627. dinger v. Jocelyn, 18 Ind. 325; Nesbit (c) R. S. 1881, 1431; The Morton v. Long, 37 Ind. 300; Jocelyn v. Bar- Gravel Road Co. r. Wysong, 51 Ind. 4. rett, 18 Ind. 128; Copple v. Lee, 78 (d) Harris v. Knapp, 21 Ind. 198; Ind. 230. 16 JURISDICTION OF COURTS. [CHAP. 29. Amount. Justices of the peace have jurisdiction "to try suits founded on contracts or tort, where the debt or damage claimed, or the value of the property sought to be recovered, does not exceed one hundred dollars and concurrent jurisdiction to the amount of two hundred dollars, but the defendant may confess judgment for any sum not exceeding three hundred dollars. " f It was formerly held that the limitation of jurisdiction as to the amount involved did not apply to actions brought to recover property taken upon execution, on the ground that such was a special proceed- ing, not governed by the general statute. 8 But since the act of 1861 was passed, fixing the jurisdiction of jus- tices of the peace at two hundred dollars, the limitation has been ap- plied, by the supreme court, to actions to recover personal property. 11 30. How amount of claim determined. The amount laid in the conclusion of the complaint constitutes the plaintiff's claim, and must govern in determining whether the justice has jurisdiction. Where an account is filed as the basis of the action, the footing of the account is the amount involved. 1 Where the complaint consists of several paragraphs, if the whole amount demanded in all of the paragraphs exceeds two hundred dol- lars, the justice has no jurisdiction.- 1 31. Exclusive jurisdiction. Justices of the peace have exclu- sive original jurisdiction of actions brought against railroad companies in this state for animals killed by their cars, where the injury done does not exceed fifty dollars. k And it has been held by the supreme court that claims for stock killed at different times can not be joined so as to give jurisdiction to the circuit court. 1 They have' exclusive original jurisdiction also of prosecutions for bastardy." 1 MAYORS OF CITIES. 32. Generally. Mayors of cities have exclusive jurisdiction of all (f ) K. S. 1881, g 1433. 357; Short v. Scott, 6 Ind. 430; Culley (g) Hannah v. Steinberger, 6 Blkf. v. Laybrook, 8 Ind. 285. 520; Matlock v. Strange. 8 Ind. 57; (j) Wetherill v. The Inhabitants, Griffin v. Maloney, 13 Ind. 402. etc., 5 Dlkf. 357; Swift v. Woods, Ib. (h) Leathers v. Hogan, 17 Ind. 242; 97; Second Nai'l Blc. of Richmond v. Harrell v. Hammond. Adm'r, 25 Ind. Hatton, 81 Ind. 101. 104; R.S. 1881, 1547. (k) R. S. 1881, 4026. (i) Mitchell i: Smith, 24 Ind. 252; (1) The Toledo, etc., . R. R. Co. v. Wetherill a/The Inhabitants,etc.,5 Blkf. Tilton, 27 Ind. 71. (m) R. S. 1881, \ 978. m.J JURISDICTION OF COURTS. 17 prosecutions for violations of the by-laws and ordinances of the city and township in which such city is situated. They have, within the limits of their respective cities, the same jurisdiction as that of justices of the peace in all matters, civil and criminal, arising uiider the laws of the state, and in crimes and misdemeanors their jurisdiction is co- extensive with the county in which their respective cities are situate." But in criminal cases mayors of cities have power to imprison, for any time not exceeding thirty days, as a part of the punishment. CITY COURTS. 33. Concurrent jurisdiction. City courts have no exclusive jurisdiction. They have concurrent jurisdiction with justices of the peace iu all civil cases. By the act creating city courts, they were given concurrent jurisdiction with the circuit courts, where the amount in controversy did not exceed fifteen hundred dollars, except in cases of slander, libel, divorce, foreclosure of mortgages on real estate, and where the title to real estate was in issue. But the act of 1881, defining the jurisdiction of the circuit court, gives that court exclusive jurisdiction of all cases except where exclu- sive or concurrent jurisdiction is given to justices of the peace, and such jurisdiction as is conferred by law upon criminal and superior courts. P The effect of this act was to deprive city courts of all jurisdiction not conferred upon justices of the peace. q COUNTY COMMISSIONERS. 34. Judicial and legislative. The boards of county commis- sioners are courts of record, and are of limited jurisdiction. They act in two capacities, judicial and legislative. It is only with their juris- diction as a court that we have now to deal. As the agents of their respective counties, their duties are varied and extensive, and upon any question brought before them, where they are called upon to act merely in their legislative capacity, their action is conclusive/ The question has frequently arisen in practice, whether in the cases in litigation the commissioners were acting in their legislative capacity, and the question has been of no little embarrassment to the courts. (n) R. S. 1881, 3062; Wabasb, etc., (p) K. S. 1881, 1314. By. Co. v. Lash, 103 Ind. 80. (q) R. S. 1881, 3206. (o) R. S. 1881, 3062; Waldo v. (r) R. S. 1881, 5731, 5745 ; Hanna Wallace, 12 Ind. 569; Schroeder's v. The Board, etc., 29 Ind. 170. McDonald, 917 et seq. 2 18 JURISDICTION OF COURTS. [CHAP. These questions have usually been raised in cases of appeal, the courts holding that where the board acts in its legislative capacity there is no appeal. The statute provides that from all " decisions of such com- missioners there shall be an appeal," etc. 8 The supreme court has held that, under this section, to entitle the party to an appeal, there must have been a " decision" by the commis- sioners, and that in a case where there is an adversary proceeding. 1 35. Exclusive jurisdiction. County commissioners have ex- clusive original jurisdiction of applications for the location, change, or vacation of highways, u and applications for license to retail intoxicat- ing liquors. 7 They have also original exclusive jurisdiction to try and determine all actions upon claims against their respective counties. w And of pro- ceedings to contest the election of any county or township officer. 1 (s) R. S. 1881, H 5769, 5770, 5771, (u) R. S. 1881, 5015 et seq. 5772. (v) R. S. 1881, 5312. (t) Moffat v. The State, etc., 40 Ind. (w) R. S. 1881, g 5758. 217; Hanna v. The Board, etc., 29 Ind. (x) R. S. 1881, 4758 et seq. 170; Waldo v. Wallace, 12 Ind. 569; Platter v. Board of Com'rs, etc., 103 Ind. 360. Uc(u. 73 UJM L^cU ft- 04 /X 17.] PARTIES. 19 CHAPTER IV. PARTIES. SECTION. PLAINTIFFS. 36. Real party in interest must sue. 37. Parties having united interest may sue. 38. Assignees may sue. WHAT MAT BE ASSIGNED. 39. The statute. 40. Assignment of judgments. 41. Vendors' liens. 42. Accounts. 43. Promissory notes. 44. What not assignable. 45. Right of action for tort. 46. Chattels not in possession. 47. Certificates of purchase and guar- anties. ACTIONS BT AND AGAINST PUBLIC OFFICERS. 48. Township trustees. 49. On bonds payable to the state. 50. On bond of public officer. 61. On bond of county treasurer. 52. Commissioner to sell real estate. 53. On bond of township trustee. 54. When the state real party in in- terest. 55. In actions for money due the state in the hands of public officer. 56. Surety of the peace. 57. To contest elections. 58. On guardian's bond. 59. Relators in actions against tele- graph and other companies, un- der the statute regulating taxa- tion. SECTION. EXECUTORS, ADMINISTRATORS, TRUS- TEES OF AN EXPRESS TRUST, AND PERSONS AUTHORIZED BY STAT- UTE TO SUE. 60. May sue without joining party in interest. 61. Agent not trustee of an express trust. 62. Who is trustee of an express trust. 63. Who authorized by statute to sue. ACTIONS THAT SURVIVE. 64. Personal representative may sue. 65. For injuries resulting in death. 66. Authority to sue under decedents' act. ACTIONS RELATING TO REAL ESTATE. 67. General rule. 68. Exceptions, where personal estate insufficient to pay debts. 69. Where no heirs present to take possession of real estate. 70. Growing crops. 71. On bond of administrator or ex- ecutor. 72. For what causes action on bond may be brought. 73. When creditor may sue on bond. 74. Action to set aside allowance of fraudulent claim. MARRIED WOMEN AS PLAINTIFFS. 75. When may sue alone. 76. When husband refuses to join in action. 77. When wife may sue for husband. 20 PARTIES. [CHAP. INFANTS. MISCELLANEOUS. 78. When may sue. * 85. Unmarried female may sue for her 79. When sole plaintiff must sue by own seduction. next friend. 86. Actions by poor person. 80. May sue as poor person, without 87. When proper plaintiff refuses to next friend. join in action. 88. When parties are numerous, part GUARDIANS AS PLAINTIFFS. may sue for all. 81. When may sue as such. 89. When surviving partner may sue. 82. For seduction of ward. 90. Assignee for benefit of creditor. 83. Foreign guardians. 91. For goods shipped C. O. D. 84. In settlement of decedents' estates. 92. Persons of unsound mind. PARTIES DEFENDANT. 93. Who proper defendants. 36. Real party in interest must sue. Our statute provides that every action must be prosecuted in the name of the real party in interest, except that an executor, administrator, a trustee of an ex- press trust, or a person expressly authorized by statute, may sue with- out joining with him the person for whose benefit the action is prose- cuted. The statute is simple enough, but it is not always easy to determine who is the " real party in interest." The code in this respect but fol- lows out the old equity rule as to parties. The common-law rule was that the person having the legal interest in the subject-matter of the action was the necessary party plaintiff. b It was held in the case cited that the payee still held the legal inter- est in the note in suit, and the action must be brought in his name in the absence of any indorsement, though the note was made payable to the payee or bearer, and was held by the party in whose name the ac- tion was brought. It has also been held that at law a promise made by one person to another, for the benefit of a third, could not be enforced by the latter. But this rule does not apply to a proceeding in equity, where the third party, for whose benefit the promise is made, may bring the ac- tion/ And it may be regarded as the settled law in this state that, under (a) R. S. 1881, $ 251, 252; Board of low v. Kemp, 7 Blkf. 544; Britzell v. Com'rs ^.Jameson, 86 Ind. 154; Pixley Frylager, 2 Ind. 176; Eastman v. Ram- v. Van Nostern, 100 Ind. 34. sey, 3 Ind. 419. (b) Jamison v. Jarrett, 4 Ind. 187. (d) Bird v. Lamus, 7 Ind. 615. (c) Haskett v. Flint, 5 Blkf. 69 ; Far- IV.] PARTIES. 21 the code, the party for whose benefit the promise is made is the proper plaintiff. 6 In the last case cited, Buskirk, J., in delivering the opinion, paid: " In actions at law privity of contract is essential, but the rule is and always has been different in equity ; and the rule should be regarded as settled in this state that a party not known as a contracting party, for whose benefit the contract was made, may maintain a suit upon it in equity. Under our code of procedure the plaintiff is entitled, on bringing his action, to whatever relief either law or equity would have afforded him, on the case made, before the distinction between them in practice was abolished. The two systems are blended together, and either legal or equitable rights are to be enforced in the civil action provided for." f It would seem to be the better practice that the suit should be brought in the name of the person for whose benefit the promise is made, as he must be the " real party in interest," as being the only party who could be injured by a breach of the contract. In almost every state where a code has been adopted, the rule has been so changed as to require that the action shall be brought in the name of the party for whose benefit the contract is made. g 37. Parties having united interest may sue. The common- law rule with reference to parties has been very materially changed by our code. h The object of the statute is that all persons who have an interest in the subject-matter of the action shall be made parties thereto. It is not necessary to the right of a party to maintain his action that he should be the legal owner of the thing in controversy. If he is the equitable owner, he is considered under the code as the " real party in interest," and as such is the proper party plaintiff. And it is necessary that all persons who have a united interest should join in the suit, unless they are so numerous as to make it impracticable to bring them all before the court. 1 But to entitle several individuals to join in the same action, their in- terests must be united ; they must be claiming " one general right (e) Day v. Patterson, 18 Ind. 117; (g) Throop's N. Y. Code, 449; Duval v. Mclntosh, 23 Ind. 529 ; Cross Code of Iowa, 2543 ; Code of Oregon, . Truesdale, 28 Ind. 45 ; David v. Cal- 27 ; Code of Idaho, 4 ; Code of Ari- loway, 30 Ind. 112; Mathews v. Kit- zona, 4; E. S. Ohio, 1880, 4993; 1 enour, 31 Ind. 31 ; Miller r. Billings- Van Sant PI. 110. ley, 41 Ind. 489. (h) R. S. 1881, 269. (f) Potter v. Smith, 36 Ind. 231- (i) Tate v. The O. & M. R. R. Co., 236; Frenzell v. Miller, 37 Ind. 1; 10 Ind. 174. Durham v. Hall, 67 Ind. 123. 22 PARTIES. [CHAP. where there is one common interest among all the plaintiffs centering in the point in issue in the cause. "" It is important that the pleader, before bringing his suit, should de- termine who are proper parties to be made plain tin's. The same care is not required in selecting parties defendant. If too many defendants are joined, the plaintiff fails to recover as against the defendant im- properly joined, but such failure in no way affects his right to recover against those defendants against whom he has a cause of action. But where too many plaintiffs are joined, and no cause of action is shown in the complaint as to any one of the plaintiffs, it is fatal, not only as to his right to recover, but is equally fatal, where there is a de- murrer to the complaint, as to all the plaintiffs with whom he has been improperly joined. The result is just the same as it would be if a nec- essary party plaintiff had not been joined. This exposition of the law is placed upon the ground that where several parties join as plaintiffs the complaint must show a joint cause of action in them. Under this construction, it would make no difference if the complaint did disclose a cause of action in all of the plaintiffs if the cause of action was not the same as to each. Such a cause of action must be shown in all of the plaintiffs as would entitle them to join as plaintiffs under the statute. k In case any person who is a necessary party plaintiff in bringing an action refuses to join in the action, he may be made a defendant, the reason therefor being stated in the complaint. 1 38. Assignees may sue. The assignee of any claim arising out of contract is authorized by the statute to sue, but where the assign- ment is not in writing, the assignor must be made a party defendant to answer as to the assignment or his interest in the subject of the action. m This provision does not apply to actions to recover real es- tate and damages for its detention. (1) But the assignee in such case takes subject to any set-off or other defense existing at the time of or before notice of the assignment, except in actions on negotiable promissory notes and bills of exchange, transferred by indorsement in good faith and upon good consideration before due." The latter clause of the above section has been construed by the supreme court to apply only to such notes as are made negotiable by statute as inland bills of exchange. Notes negotiable as inland bills (j) Goodnight v. Goar, 30 Ind. 418; (1) Shoemaker v. The Board, etc., 36 Shoemaker v. The Board, etc., 36 Ind. Ind. 175. 175; Heagy v. Black, 90 Ind. 534; (m) K. S. 1881, 276; Story v. Jones v. Cardwell, 98 Ind. 331. Downing, 34 Ind. 300. (k) Berkshire v.Shultz, 25 Ind. 523; (1) Cartwright v. Yaw, 100 Ind. 119. Man et ux. v. Marsh, 35 Barb. 68; (n) K. S. 1881, 276. Goodnight v. Goar, 30 Ind. 418. (o) Sayers v. Linkhart, 25 Ind. 145. IV.] PARTIES. 23 of exchange are such as are made payable "in a bank in this state. "P It follows, from these authorities, that the question whether the prom- issory note assigned is due or not, can make no difference with reference to the right of the maker to his defense, except when the note is upon its face made payable in a bank in this state. But in every case of as- signment it. is important, in order to cut off any right of the maker to set up a defense by way of set-off, or otherwise, acquired after the assignment, that notice shall be given at once to the maker that such assignment has been made. It is such defenses as existed in favor of the maker " before notice of assignment," and not before the assign- ment that may be set up against the assignee.* 1 And the burden of proof is upon the assignee to show that notice of the assignment Avas given prior to the acquisition by the maker of the defense set up, though, as a question of pleading, the rule is the other way. r WHAT MAY BE ASSIGNED. 39. The statute. Our statute, with reference to what may be as- signed, is very general in its terms. . It provides that all promissory notes, bills of exchange, bonds, or other instrument in writing signed by any person who promises to pay money or acknowledges money to be due, or for the delivery of a specific article, or to convey property, or to perform any stipulation therein mentioned, shall be negotiable by indorsement thereon, so as to vest the property thereof in each indorsee successively. 8 It will be seen that this statute only authorizes the transfer by assign- ment of instruments in ivriting signed by the person promising, and would not include accounts, judgments, and the many other instruments not signed by the promisor, which would give to the original holder a right of action. 40. Assignment of judgments. We have another statute, how- ever, which provides for the assignment of judgments for the recovery of money before a court of record. In order to pass the legal title thereto, the assignment must be made on or attached to the judgment, (p) K. S. 1881, 5506; Eominger (q) E. S. 1881, 5503; post, 413, x. Keyes, 73 Ind. 375; Porter r. Hal- 414, 649. loway, 43 Ind. 35; Gillaspy v. Kelley, (r) Savers v. Linkhart, 25 Ind. 145; 41 Ind. 158; Hunt r. Standart, 15 Ind. Rawlings 'v. Fisher, 24 Ind. 52; Hays 33; Rawiings r. Fisher, 24 Ind. 52; r. Fitch, 47 Ind. 21-24 ; post, 649, Sayers v. Linkhart. 25 Ind. 145; Park- 650. inson v. Finch. 45 Ind. 122. (s) R. S. 1881, 5501. 24 PARTIES. [CHAP. and must be attested by the clerk of the court or the justice of the peace before whom the judgment was recovered. 1 The statute authorizes the assignee to prosecute any action which the plaintiff may have thereon, but execution must issue in the name of the plaintiff for the use of the assignee. u At common law the assignment of a judgment gave the assignee no authority to proceed upon the judgment in his own name. v Under the above statute, it has been held that the owner of a part of a judgment may assign his interest therein, and the assignee may unite with the owners of the residue in an action to enforce the same. w And that, although the legal title to the judgment only passes by an assignment in writing, there may be an equitable assignment by parol.* The equitable oAvner of a judgment may sue thereon, but an assign- ment by parol, although it has the effect to pass the equitable title to the assignee, will have no force as against an " innocent purchaser." The subsequent transfer to an innocent purchaser would vest the le- gal title in him, notwithstanding the prior equitable transfer. y 41. Vendor's lien. The lien of the vendor of land, for the pur- chase-money, is assignable. And where a note has been taken for the purchase-money the lien passes by the mere assignment of the note. 2 42. Accounts. We have no statute authorizing the assignment of accounts, but it has been decided by the supreme court that an ac- count may be so assigned as to vest in the assignee an equitable inter- est which will authorize him to sue in his own name. 8 43. Promissory notes. A part interest in a promissory note may be assigned in equity. b The assignment of a note secured by mortgage carries with it the mortgage lieu, and where several notes are secured by the same mort- (t) R. S. 1881, 603. (z) Fisher v. Johnson, 5 Ind. 492; (u) K. S. 1881, 605, 606; Reid v. Lugow v. Badollet, 1 lilkf. 416; Perry Ross, 15 Ind. 265. v. Roberts, 30 Ind. 244; Kern v. Hu- (v) Reid v. Ross, 15 Ind. 265. zelrig, ll Ind. 443; Brumfield v. Pal- (w) Lapping v. Duffy, 47 Ind. 51; mer, 7 Blkf. 227; Johns v. Sewell. 33 Wood v. Wallace, 24 Ind. 226. Ind. 1. (x) Scoby v. Finton, 39 Ind. 275; (a) Overstreet v. Freeman, 12 Ind. I'.urson v. Blair, 12 Ind. 371; Kelley 390; Swails v . Coverdill, 17 Ind. 337; o. Love, 35 Ind. 106; post, $ 662, 663. Bottrd of Com'rs v. Jameson, 86 Ind. (y) Burson v. Blair, 12 Ind. 371; 154. Mewhester v. Price, 11 Ind. 199; Kel- (b) Groves . Ruby, 21 Ind. 418; 2 ley v. Love, 35 Ind. 106. Story's Equity Jur., 1044. IV.] PARTIES. 25 gage the assignment of one is an equitable assignment pro tanto of the mortgage. Where an assignment was made upon a mortgage, of the mortgage "and the notes described therein," it was held that the legal title to the notes did not pass by such assignment, on the ground that the as- signment, to pass the title, must have been indorsed on the notes or some paper attached thereto, but that such assignment did have the effect, under the code, to convey an equitable title authorizing the as- signee to sue in his own name. d The assignment of the mortgage alone, without the assignment of the debt, passes no title. It is a mere nullity. 6 44. What not assignable. It has been held that neither a li- cense to sell intoxicating liquors, a contract for the maintenance of the poor, indentures of apprenticeship, nor the office of state printer are assignable/ 45. Right of action for tort. In the case of Patterson v. Craw- ford, 12 Ind. 241, it was held that section 3 of the code g does not au- thorize nor does it forbid the assignment of a thing not arising out of contract. Davison, J., in delivering the opinion of the court, said: " The third defense assumes that, though the defendant may be liable to Armstrong by reason of the false imprisonment, still his right of action could not be assigned to the plaintiff. The code provides that ' every action must be prosecuted in the name of the real party in in- terest ; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.' This section does not authorize nor does it forbid the assignment of a thing not arising out of contract. It adopts the equity rule which required every action to be prosecuted in the name of the real party in interest, and simply de- clares that that section shall not be deemed to authorize such assign- ments. An assignee takes precisely the same interest in the assign- ment of every species of demand, either at law or equity, as he did before. the new code. Hence a demand capable of assignment before the code, so as to invest the assignee with the real interest, is such a (c) Stanley v. Beatty, 4 Ind. 134; (f) Godfrey v. The State, 5 Blkf. Hough v. Osborn, 7 Ind. 140; Harris 151; Burger v. Rice, 3 Ind. 125; Ellis .-. Harlan, 14 Ind. 439. v. The State, 4 Ind. 1. (d) French v. Turner, 15 Ind. 59. (g) 2 R. S. 1876, p. 33; K. S. 1881, (e) Hubbard v. Harrison, 38 Ind. 251. 323-340; Johnson v. Connett, 29 Ind. 59 ; Hough v. Osborn, 7 Ind. 140. 26 PARTIES. [CHAP. demand as will now pass by assignment so as to give the assignee a right of action. "Mere personal torts, such as slander, assault and battery, and the like, which die with the party and do not survive to his personal repre- sentatives, are not assignable. 11 But in view of a statutory rule of procedure, identical with the one just recited, it has been held that torts for the taking and conversion of personal property, and generally such a right of action for a tort as would survive to the personal representatives, may be assigned so as to pass an interest to the assignee, which he can assert in his own name in a civil action, as he formerly might in the name of the assignor at law. 1 " 46. Chattels not in possession. Chattels not in possession may be assigned. Such assignments are usually made by the assign- ment of bills of lading, or other evidences of the right of the assignor to the possession of the goods therein named, and the assignment of the bills of lading vests the title to the property in the assignee.-" 47. Certificates of purchase and guaranties. A certificate of purchase given by a sheriff on the sale of real estate on execution is assignable, and it has been held that a contract of guaranty may be assigned. k ACTIONS BY AND AGAINST PUBLIC OFFICERS. 48. Township trustees. There are in each township two cor- porations a school township and a civil township. The trustee of the civil township in which he resides is also the trustee of the school township. The same person acts in different capacities, and must sue and be sued in one or the other capacity according to the purpose for which the action may be brought. 1 In Carmichael v. Lawrence, the suit was brought against the civil township to recover money alleged to be due lor building a school-house. The court say: "There are (h) Citing Comegys v. Vasse, 1 Pet. (k) K. S. 1881, 766, Cole v. The 213. Merchants' Bank, 60 Ind. 355. (i) Citing Robinson v. Weeks, 6 (1) R. S. 1881, g 5990, 4437, 4438; How. Pr. 101 ; Hodgman v. The West- Wright v. Stockman, 59 Ind. 65 ; Car- em Railroad Corporation, 7 Id. 493; michael v. Lawrence, 47 Ind. 55} : Vansant, 108. McLaughlin v. Shelby Township, 5:2 (j) Law v. Hatcher, 4 Blkf. 364; Ind. 114; Sims v. McClure, 52 Ind. Addison on Con. 205; The Union, etc., 267; Jam's v. Shelby Township, 62 v. Yeager, 34 Ind. 1-15; R. S. 1881, Ind. 257. I 5501. rv.] PARTIES. 27 two corporations in Greene county with almost the same name. One is Center township of Greene county; the other is Center School town- ship of Greene county. The first is denominated a civil township, and the second a school township. This distinction is made in the school law. ' Each civil township in the several counties in this state is hereby declared a township for"school purposes, and the trustee for such township shall be trustee, treasurer, and clerk for school purposes.' It must be contemplated that the funds, etc., of these two corpora- tions shall be kept separate. It is as an officer of the school township, and not as an officer of the civil township that the trustee has power to levy a tax for the erection of school-houses, and to expend the same for that purpose. We think it must follow, that it is as trustee of the school township, and not as trustee of the civil township that the trus- tee must contract Tor the building of school-houses. We do not think the trustee of the civil township can legally contract for the building of a school-house and make the civil township liable therefor. In the case under consideration, the action is against the civil township seek- ing to render it liable for the cost of constructing the school-house, and not against the school township, the corporation which should be liable if any one." 49. On bonds payable to the state. The statute provides. "Actions on official bonds and bonds payable to the state shall be brought in the name of the State of Indiana, upon the relation of the party interested."" 1 In this class of actions the state is not the " real party in interest," but the person upon whose relation the action is brought. 11 50. On bonds of public officers. The general rule is that an ac- tion upon the official bond of a public officer must be brought in the name of the state on the relation of the person who has been injured by the breach of such bond. There are certain exceptions that will be no- ticed hereafter. Jt will be found, it is believed, in all of the cases where a different rule has prevailed that it is because of some statute providing specifically on whose relation the action shall be brought. Where there is a statute of this state providing what person or officer shall bring the action, the suit should be brought not in his name alone, but in the name of the state on the relation of such person. In the absence of any such statute the real party in interest must be made the relator. (ra) R. S. 1881, 253. der v. The State, 21 Ind. 77; Yater v. (n) Neal v. The State, 49 Ind. 51 ; The State, 58 Ind. 299. Taggart v. The State, 49 Ind. 42; Sny- (o) Yanarsdell v. The State, 65 Ind. 176; Hadley v. The State, 66 Ind. 271- 28 PARTIES. [CHAP. 51. On bond of county treasurer. It is frequently a matter of much difficulty to determine who should be made relator in actions brought upon official bonds, and the adjudicated cases in this state are not such as to remove the difficulty. In an action on the official bond of a county treasurer for a failure to pay over money in his hands, as treasurer, belonging to a township, it has been held in a late case that the auditor of the county is the proper relator, and that a suit can not be maintained in the name of the state on relation of the township which has been the loser. p This would seem to be in conflict with the rule that the relator must be the real party in interest. The township has lost the money, and is beyond question the real party in interest. But the decision is based upon 125-127 and 128, 1 G. & H. 102, which provide for settle- ments and payment of money by such treasurers, and that in case they fail to make such payments, the county auditor, on being instructed by the auditor of state or board of county commissioners, shall cause suit to be brought against such county treasurers and their sureties. q It was also decided in Pepper v. The State, that in actions brought to recover money due to the state from a county treasurer and his sureties, the auditor, and not the treasurer of state should be the relator/ 52. Commissioner to sell real estate. An action on the bond of a commissioner to sell real estate in a partition proceeding should be brought on the relation of the owners of the land. 9 53. On bond of township trustee. An action on the official bond of a township trustee for failure to pay over money at the ex- piration of his term of office, must be brought on the relation of his successor in office, and can not -be brought in the name of the town- ship of which he was the trustee. 1 54. When the state real party in interest. In an action on a bond made payable to the state, where the obligation is to the state, and no individual has an interest other than such an interest as is common to all, no relator is necessary. The action in such case may (p) Taggart v. The State, etc., 49 (s) Maxedon v. The State, 24 Ind. Ind. 42. 370; Stanton v. The State, 74 Ind. 503; (q) Snyder v. The State, 21 Ind. 77; Owen v. The State, 25 Ind. 107. Neal v. The State, 49 Ind. 51. (t) Hawthorn v. The State, 48 Ind. (r) Pepper v. The State, 22 Ind. 464; Dishon v. The State, 19 Ind. 255. 399 ; The State ex rel., etc., v. Pepper, 31 Ind. 70 rv.] PARTIES. 29 be brought in the name of the state alone, she being the real party in interest. 11 55. In actions for money due the state in the hands of public officer. The following provision is a part of the act for the settlement of decedent's estates : " SEC. 2415. If, at the expiration of two years from the final settle- ment of an estate, no proof of heirship or title by will shall have been made as to all or any portion of the surplus, the court shall direct the same to be paid to the county treasurer, to be by him paid to the treas- urer of state, who shall enter the same on his books to the credit of the unknown heirs of the decedent." v Section 145 of the decedents act of 1852 provided that, if an " ad- ministrator fail to pay into court any money belonging to such estate of which there are no known heirs, the court shall remove him from his trust aud appoint a successor, who, having qualified and given bond according to law, shall bring suit against such delinquent on his bond, which suit the prosecuting attorney of the proper court shall prose- cute. " w But this provision is not contained in the act of 1881. It is provided, however, that "Any administrator failing to pay into court any moneys received on account of the rent or sale of real estate of unknown heirs or devisees, when required to do so by the provisions of this act, or by the court, shall be liable on his bond therefor, and, in the absence of such owners, suit on the bond shall be prosecuted by the prosecuting attorney, who shall be allowed compensation for his services out of the damages recovered." x It is further provided, ' ' that the clerk of the circuit court shall report to the auditor of state, within thirty days after the same is paid into court, the amount of money belonging to unknown heirs which has been directed to be paid to the county treasurer, with the names of the decedent and the executor or administrator, and such auditor shall enter the same on his account against the treasurer of state, who shall order suit to be brought against all officers on their bonds who are delinquent in the management of the same." y It is not at all clear in whose name suits should be brought under either of the section?. Under section 145 of the original decedents act, where the administrator or executor was removed and a successor appointed, it was made the duty of the successor to sue on the bond, and there is no reason why such successor should not be the relator without any such direct provision. The suit, in this case, should be (u) Fry v. The State, etc., 27 Tnd. (w) 2 R. S. 1876, p. 545, 145. .348; Shane v. Francis, 30 Ind. 92. (x) R. S. 1881. g 2418. (v) R. S. 1881, \ 2415. (y) R. S. 1881. \ 2416. 30 PARTIES. [CHAP. brought in the name of the state on the relation of such administrator. We have, also, the following provision : " SEC. 1143. Whenever any property shall escheat or be forfeited to the state for its use, the legal title shall be deemed to be in the state from the time of the escheat or forfeiture ; and an information may be filed by the prosecuting attorney in the circuit court for the recovery of the property, alleging the ground on which the recovery is claimed, and like proceedings and judgment shall be had as in a civil action foi the recovery of property." 8 The statute provides that "the estate of a person dying without kindred capable of inheriting shall escheat to the state." a The question of the right of the prosecuting attorney to sue must depend upon the question as to the time Avhen such moneys escheat to the state. The statute provides that "if no heirs appear to claim the surplus belonging to the estate, the court shall direct it to be paid over to the county treasury." ' From this time, at least, the property has escheated to the state, and, under section 1143, the prosecuting attorney might bring suit against the officer failing to pay the money into the treasury. The same right to sue may be exercised by the succeeding administrator, as against the executor or administrator, where he fails to pay the money into court and has been removed. As we have Been, by section 2416, after the money has been paid into court, the treasurer of state shall order suit to be brought against all officers on their bonds who are delinquent in the management of the same. This section does not authorize suit to be brought by the state treasurer, but that he shall order suit brought. The statute of which this section is a part contains no authority for any one to sue in such case. Under the section cited, from the act relating to prosecuting attorneys, the suit might be brought on the relation of the prosecuting attorney. There is another statute which gives the attorney-general of the state the right to sue for and collect any moneys " paid to any public officer of the state, or any county officer, or other person, for unclaimed wit- ness fees, court docket fees, license, money unclaimed in estates, or guardianship, fines or forfeitures, or moneys that escheat to Hie state for want of heirs, or from any other source, where the same is by any law re- quired to be paid to the state, or any officer in trust for the state ; and in all cases where tlie officers, whose duty it shall be to collect tfie same, shall fail, neglect, or refuse, for twelve months after the cause of action in favor of tlie state, sliatt have accrued, or shall fail, neglect, or refuse to sue for and (z) K. S. 1881, 1143. (a) K. S. 1881, 2478. IV.] PARTIES. 31 proceed to recover any property belonging to, or which may escheat to the state." b This section expressly provides that the right of the attorney-general to sue shall depend upon the failure of the proper officers, for two years, to bring the necessary suit or collect the money. So if the prosecuting attorney should fail for two years to bring suit to recover money that has escheated to the state, the action might be brought by the attorney-general. In the case of Fuhrer, Adm'r, v. The State ex rel. The Attorney- General, the question of the right of the attorney-general to sue under this section was presented to the supreme court. The suit was brought on the relation of the attorney -general against the administrator, whose final report showed money in his hands, and the same had not been claimed for two years after the final settlement. No order had been made by the proper court removing the adminis- trator, and no successor had been appointed. It was claimed by the appellant, that in order to give the attorney-general the right to sue, the complaint must show that the administrator who was in default had been removed and a successor appointed, and that such successoi had failed for twelve months to bring suit to collect the money. Howk, J., in delivering the opinion, said : "In this cause it is ad- mitted that the final settlement of the estate of appellant's intestate was made on the 12th day of July, 1867. Two years afterward, or on the 12th day of July, 1869, the state's cause of action or right to the money accrued, under section 143 above cited, of the act providing for the settlement of decedents, estates. The judge of the proper court, the officer whose plain legal duty it was to direct and see that the surplus of said estate was then paid over to Hie county treasurer of Posey county by the appellant, failed and neglected to discharge such duty. Afterwards more than five years elapsed, and still the judge of the proper court, the officer whose plain legal duty we have already stated, still failed and neglected to discharge such duty, and also still failed and neglected to re- move the appellant from his said trust and appoint his successor therein, as it was also the plain legal duty of such officer to do, under the require- ments of said section 145 before cited. When these facts came to the knowledge of the attorney-general of the state, he would have been derelict in his plain legal duty, as we understand his duty under the law, if he had not forthwith instituted and vigorously prosecuted to a successful issue this action against the appellant." It will be noticed that the right of the attorney-general to bring the action, is based solely upon the assumed failure of the judge of the ^b) R. S. 1881, 5Gti8. (c) Fuhrer v. The State, 55 Ind. 150. H2 PARTIES. [CHAP. proper court to perform his duty ; and the " plain legal duty" of the judge, as stated in the opinion, shows that the learned judge misappre- hended the terms of the statute. There was no statute making it the duty of the judge to "direct and see that Hie surplus of said estate was paid over to the county treasury by the appellant." On the contrary, the only duty imposed upon the judge, by the sec- tion referred to, in case the administrator failed to pay the money int^ court, not into the county treasury, was to order his removal and ap- point a successor. If such successor should fail for twelve months TO sue, then the right of the attorney-general to maintain the action would be clear. The duty of the court to direct the surplus of the estate to be paid into the county treasury, as required by section 143, could only arise upon the money being paid into court. There was no law authorizing the administrator to pay the money into the county treasury. Section 146 of the same act makes this clear. It made it the duty of the judge to report to the auditor of state, within thirty days after the same is paid into court, the amount of money belonging to unknown heirs, which has been directed to be paid to tlie county treasurer. The judge of the proper court could not direct the money to be paid to the treasurer until it was paid into his court, therefore the de- cision cited is based upon a misconception of the statute. But if the learned judge were right in this, still the failure of the judge to per- form the duty stated could not authorize the attorney-general to sue. It is only upon the failure for twelve months of the officer whose duty it is to collect such moneys to perform his duty that the attorney-general is authorized to act. d And the judge of the court was not the officer whose duty it was to collect the money. The right of the prosecuting attorney to sue, and his failure to per- form his duty, is not considered. As we have seen, where the admin- istrator had not been removed, the suit should have been brought by the prosecuting attorney, and if the right of the attorney-general to sue had been based upon the failure of the prosecuting attorney to per- form that duty, the conclusion reached by the court must have been the same without the necessity of a misconstruction of the statute. If the prosecuting attorney of the proper county had failed for twelve months to take steps to collect the money, the attorney-general would have the right to sue, but as his right to sue is dependent upon such failure, the complaint should have alleged the fact. id) R. S. 1831, 5668. The present payment of the money to the county statute makes it the duty of the clerk treasurer. R. S. 1881, 2416. to- notify the auditor of state of the IV.] PARTIES. 33 In the case of Moore v. The State ex rel. Attorney-General, the right of the attorney-general to sue for money due the state, on account of unclaimed moneys in estates and other moneys, is again affirmed. 6 The question of the right of the attorney-general to bring suit for money due the state, and charge fees and commissions therefor, came again before the supreme court in the late case of the State ex rel. At- torney-General v. Denny. In the very able and exhaustive opinion delivered by Howk, J. , he says : " It is the true intent arid meaning of this supplemental act, as we construe its provisions, that the attorney -general of this state shall be and is thereby authorized to collect at once, with or without suit, all amounts paid to any public officer of the state, or any county officer, or other person, and not paid by such officer or person into the proper treasury, as required by law, for unclaimed witness fees, court docket fees, licenses, money unclaimed in estates or guardianships, fines or forfeitures, or moneys that escheat to the state for the want of heirs, and all amounts due from any other source, where the same was, by ariy law, required to be paid to the state or any officer in trust for the state ; except as to fines, forfeitures, and property escheating or 'belonging to the state, which he may not collect, with or without suit, or sue for the recovery of, until after the expiration of one year from the time the cause of action has accrued therefor, and then only in the event that the proper prosecuting attorney has failed, neglected or refused, for and during the said year, to collect the same, or to institute proceedings for the recovery thereof." f This suit was brought to obtain from the supreme court a construc- tion of the statute as to the fees and commissions the attorney-general Was entitled to receive, but the right of the attorney-general to sue was necessarily involved in the question presented to the court, and was thoroughly considered. The decision rendered should set the matter at rest. It may not be improper to say, however, that in the opinion of the writer it was entirely unnecessary that there should have been any relator in any of these cases, and much confusion and litigation might have been avoided by bringing the actions in the name of the state without any relator. The money sought to be recovered belonged to the state, therefore the state was the real party in interest. In such cases it has been held that no relator is necessary. 5 (e) Moore, Adm'r, v. The State, 55 (f ) The State ex rel. Att'y-Gen'l r. Ind. 360; Fuhrer v.The State, 55 Ind. Denny, 67 Ind. 148. 150; The State v. Temple, 50 Ind. 585 ; (g) Fry v. The State, 27 Ind. 348; The State v. Giles, 52 Ind. 356; The Shane v. Francis, 30 Ind. 92; ante, State v. Meyer, 63 Ind. 33. 54. 3 34 PARTIES. [CHAP. It has been held that where land belonging to the state has been sold, and suit is brought to recover the purchase money, it is properly brought in the name of the state on the relation of the auditor of state, and this under a statute which provides that the suit shall be instituted in the name of the state. h 56. Surety of the peace. In an action for surety of the peace the action should be brought in the name of the state without any re- lator. 1 57. To contest elections. Actions to contest elections should be brought in the name of the state on relation of the contestor.J 58. On guardian's bond. Suit on a guardian's bond may be brought on the relation of his successor in office, k or on the relation of the ward. 59. Relators in actions against telegraph and other-com- panies under the statute regulating taxation. By the pro- visions of the act of 1881, regulating taxation, telegraph, express, telephone, insurance, sleeping-car, and other foreign companies doing business in this state, are required to report to the auditor of state a statement of their earnings, for the purposes of taxation, and a pen- alty is attached to the failure to comply with the terms of the statute. It is provided that in actions to recover penalties under this act, the suit shall be brought in the name of the state on the relation of the auditor of state, to be prosecuted by the attorney-general. 1 But actions against railroad companies, under the same statute, are required to be brought on the relation of the attorney-general, and actions against street railroad and other companies named, incorporated under the laws of this state, must be brought on the relation of the prosecuting attorney. 11 EXECUTORS, ADMINISTRATORS, TRUSTEES OF AN EXPRESS TRUST, AND PERSONS AUTHORIZED BY STATUTE TO SUE. 60. May sue without joining party in interest. "Sec. 252. An executor, administrator, a trustee of an express trust, or a (h) McCaslin v. The State, 44 Ind. (k) K. S. 1881, 2527; Cogswell t>. 151-170. The State, C5 Ind. 1. (i) The State v. Carey, 66 Ind. 72. (1) K. S. 1881, 6351, et seq. (j) The State v. Adams, 65 Ind. 393. (m) K. S. 1881, 6370. (n) K. S. 1881, 6357. IV.] PAKTIES. 35 person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be con- strued to include a person with whom or in whose name a contract is made for the benefit of another." As a rule, the right to sue for debts due to a decedent at the time of his death, vests in his executor or administrator, but where there are debts to be paid and no administration is had upon his estate his heirs may sue. p 61. Agent not trustee of an express trust. One who acts merely as the agent of another, and has no personal interest in the subject-matter of the action, is not a trustee of an express trust, and can not maintain an action in his own name upon a contract made with him as such agent. The principal for whom he acts is the real party in interest, and the action must be prosecuted in the name of the principal.* 1 It is otherwise, however, where the instrument sued on shows on its face that the contract was made for the benefit of a third person, and it was held that where a note was made payable to A. (for B.), or or- der, A. was a " trustee of an express trust, and, as such, was the proper person to bring the action. " r 62. Who is trustee of an express trust. In the case of Heavenridge v. Mondy, the supreme court say : " The meaning of the words, ' a trustee of an express trust,' as used in section 4, above quoted, was not left to the interpretation and construction of the courts, but their signification and construction were so plainly and clearly defined by the legislature as to leave no room for doubt or con- struction. Any person is a trustee of an express trust with whom or in whose name a contract is made for the benefit of another. The word contract is not used in a limited or restricted sense, but it is used and intended to be applied to all and any kind of contracts." The section of the statute referred to may not seem so plain to the profession as it did to the writer of the opinion in the case of Heaven- Co) R. S. 1881, g 252. nel, v. Schmidt, 2 Sandf. 706. But see (p) Martin v. Reid, 30 Ind. 218; Fuller v. Curtis, 100 Ind. 237. Walpole v. Bishop, 31 Ind. 156; Bearss (r) Heavenridge v. Mondy, 34 Ind. v. Montgomery, 46 Ind. 544; Schneider 28; Weaver v. The Trustees, etc., 28 v. Piessner, 54 Ind. 624; Ferguson v. Ind. 112; Dix v. Akers, 30 Ind. 431; Barnes, 58 Ind. 169; Moore v. The Mussulman v. Cravens, 47 Ind. 1; Board, etc., 59 Ind. 516. Walcott v. Stanley, 62 Ind. 198; (q) Rawlins v. Fuller, 31 Ind. 255; Holmes v. Boyd, 90 Ind. 332. Minturn v. Main, 3 Seld. 220; Grin- 36 PARTIES. [CHAP. ridge v. Mondy. If the section provided that a trustee of an express trust should be construed to mean a person with whom or in whose name a contract is made for the benefit of another, the comments con- tained in the opinion would have been just, but the statute provides that a trustee of an express trust, within the meaning of the section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another. The construction placed upon the section in the above case gives it a limited application, and has the effect to remove the doubt as to the meaning of the clause of the section referred to. The numerous cases involving the question as to who should be considered a trustee of an express trust are sufficient to demonstrate the fact that the section of the statute is not so clear as not to need the " interpretation and con- struction of the courts," but the construction given it in this case is less likely to lead to confusion than any other, and with such a construction the statute is plain enough. 8 63. "Who authorized by statute to sue. Persons authorized by law to sue are such as are given such authority by statute, because of their holding some official place.* ACTIONS THAT SURVIVE. 64. Personal representative may sue. All actions that sur- vive may be brought by the personal representatives. Actions for promises to marry do not survive. All causes of action arising out of an injury to the person die with the person of either party, ex- cept where such injury results in the death of any person, and actions for seduction, false imprisonment, and malicious prosecution. 11 It has been held under section 282 of the statute that where a plaint- iff prosecutes his action for injury to his person to final judgment -in the special term of the superior court, and upon appeal to the general term the cause is reversed and remanded to the special term for a new trial, and thereafter the plaintiff dies, there is no appeal from such re- versal, in the general term of the superior court, to the supreme court, by the personal representatives. The action is one that dies with the person, and no steps can be taken after the death of the plaintiff. 7 (s) The Northwestern Conference (t) Swift v. Elsworth, 10 Ind. 205 ; of Universalists v. Myers. 36 Ind. 375; Heavenridge r. Mondy, 34 Ind. 28-32. Nolteu. Libbert, 34 Ind. 163; Heaven- (u) K. S. 1881, 282, 283; post, ridge v. Mondy, 49 Ind. 434; Wiley v. \ 164. Starbuck, 44 Ind. 298-309; R. S. 1881, (v) Stout, Adm'r, v. The Indianap- 2969; Holmes v. Boyd, 90 Ind. 332; olis, etc., R. R. Co., 41 Ind. 149. Rinker v. Bissell, 90 Ind. 375. rv.] PARTIES. 37 65. For injuries resulting in death. The statute expressly provides for the prosecution of actions by the personal representatives for personal injuries resulting in death. "When the death of one is caused by the wrongful act or omission of another, the personal repre- sentatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he, lived, against the latter for an injury for the same act or omission. The ac- tion must be commenced within two years. The damages can not ex- ceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased." w This statute authorizes the administrator to sue in case of the death of an adult, -but where the person whose death is caused by the wrong- ful act of another is a minor, the action must be prosecuted in the name of the father, if living, and, if dead, in the name of the mother, and in case neither father nor mother is living, the action must be prosecuted by a guardian. 1 In the cases cited it was contended that the section of the statute pro- viding that actions for injuries resulting in death should be brought by the personal representatives of the deceased, was repugnant to section 266 of the code (sec. 27 old code), and must have the effect to re- peal the latter section. If such were the case, all actions of this na- ture must have been brought in the name of the personal representa- tive whether the deceased were adults or not. In the O. & M. R. Co. v. Tindall it was held that section 284 (sec. 784 old code) did not re- peal section 266, but that the former provides how the action shall be brought in case the person injured was an adult, and does not affect the right of the guardian or parent to sue when the deceased was a minor. But in the case of the Pittsburgh, etc., R. Co. v. Vining's Adm'r, a somewhat different construction was placed upon section 266. It was held in the latter case that the right of the parent to sue did not depend solely upon the question whether the deceased was a minor, but to entitle the parent to sue, the child must, at the time of the injury, have been dependent upon the parent for support. The court say: "The word child, as employed in the 27th section, is not to be construed as equivalent to the word minor, but we think is limited in its application to one who occupies the position of a child (w) R. S. 1881, I 284. This section (x) K. S. 1881, 266; The O. & M. was amended in 1881 by increasing the K. R. Co. v. Tindall, 13 Ind. 366; The amount of damages from five to ten Pittsburgh, etc., R. R. Co. u. Vining's thousand dollars. Adm'r, 27 Ind. 513; Hollingsworth v. Swedenborg, 4 Ind. 378. 38 PARTIES. [CHAP. to a parent, as depending upon him for protection, support, and edu- cation, and can not be held to include one who, although a minor, has assumed the relations and responsibilities devolving upon the head of a family. We think it is intended by the statute that the position occupied by the person should determine the question rather than the age alone." The construction placed upon the two sections by the former of these two cases would perhaps be less likely to result in confusion, and would close the door against any controversy that might arise under the con- struction given them by the latter. The question as to whether the deceased was a minor or not is one about which there could be but little controversy, but whether he was a " child" under the definition given of that term in the case of the Pittsburgh, etc., R. Co. v. Vining's Adm'r, would not be so easily determined. There is, however, a very palpable reason for placing this latter construction upon these sections. Under section 266, if the action is brought by the father or mother, the damages recovered would inure to such father or mother. There would be a manifest wrong in allow- ing an action to be brought by the father or mother, where the deceased, though a minor, was not dependent upon the parent for protection or support, but was himself the head of a family, who were dependent upon him for support and protection. The result would be that the wife and children would receive nothing, and the damages would inure solely to the benefit of the father or mother who brought the action. Where the action is brought under section 284, the section expressly provides that the damages " must inure to the exclusive benefit of the widow and children, if any, or next of kin." The same reason does not exist for excluding the right of a guardian to sue under section 266, as that section provides that the damages recovered shall inure to the benefit of the ward. Section 284 confers no right of action for an injury not resulting in death, while section 266 gives a right of action to the parent or guardian for injuries which do not, as well as those which do, result in death. This being true, the former section could not have the effect to repeal the latter by implication. y In the case cited, the court after citing authorities, say with reference to repeal by implication : "It must appear that the subse- quent statute revised the whole subject-matter of the former one, and was evidently intended as a substitute for it, or that it was repugnant to the old law. In other words, it must appear that it was the intention of the law makers to repeal the former law. When that appears, the (y) The Water-works Co. v. Burkhart, 41 Ind. 364-382. IV.] PARTIES. 39 will of the law makers is just as manifest as if it had been shown by express words." 2 Mr. Buskirk, in his work on Practice, in speaking of these two sec- tions of the statute and the authorities above cited, says : "We do not think that the two sections are repugnant. Section 784 gives a right of action only where death has resulted from the injury inflicted, while section 27 gives an action for the injury or death of a child. It could not be held that an action could be brought by an administrator under section 784 for the injury of an infant. Hence, section 784 does not embrace the entire subject-matter of section 27. Besides there is no limit fixed by statute as to the amount of recovery in an action under section 27, while in an action under section 784 the amount of recovery is limited to five thousand dollars. In our opinion, the correct rule was laid down in the O. & M. R. R. Co. v. Tindall, supra, and that was, that section 27 was applicable to infants, and section 784 to adults. This construction gives full force and effect to both sections, and thereby effectuates the manifest legislative intention."* While it is believed, as stated by the learned author, that the rule laid down in the O. & M. R. R. Co. v. Tindall, is correct, it is not the one laid down by our supreme court in the latest adjudicated case upon this point. The case of the Pittsburgh, etc., R. R. Co. v. Vining's Adm'r, lays down a different rule, and one by which the different courts of the state must be governed. The exposition of the law there laid down, has been, so far, acquiesced in, and many cases have been to the supreme court since that decision was promulgated, which were brought in conformity with the rule as there stated. The only difference between the two cases is, that in the former all cases for injuries causing death, where the person injured is a minor, must be brought in the name of the father, if any is living, if not, in the name of the mother, and if neither father nor mother is living, then the action must be brought by the guardian, while under the rule laid down in the latter case the action must be brought by the father, mother, or guardian, only in such cases where the person injured is a " child " depending on the parents for support, protection, and education. In all other cases the action must be brought by the personal repre- sentatives. And where the person injured has no father or mother, and no guardian, the action should be brought by the personal representa- tives. 11 (z) Page 383. (b) The Pittsburgh, etc., E. K. Co. (a) Busk. Prac. 57. v. Vining, 27 Ind. 513 ; Garm v. Wor- man, 69 Ind. 458. 40 PARTIES. [CHAP. 66. Authority to sue under decedents' act. The statute for the settlement of decedents' estates provides that " every executor or administrator shall have full power to maintain any suit in any court of competent jurisdiction, in his name as such executor or administrator, for any demand of whatever nature due the decedent in his lifetime, for the recovery of possession of any property of the estate, and for trespass or waste committed on the estate of the decedent in his life- time." Under this section the administrator or executor is not bound to sue in the court having jurisdiction of the settlement of the estate, but may maintain the action in any court of competent jurisdiction. The statute also gives a creditor of the estate the right to sue on claims that have been reported by the administrator or executor as worthless, in certain cases, but the action must be brought in the name of the ex- ecutor or administrator, and not in the name of the creditor/ ACTIONS RELATING TO REAL ESTATE. 67. General rule. The question frequently arises in actions with reference to real estate whether the heirs or personal representatives are the proper parties to bring the action. The general rule is, that the heir is the proper person to bring any action relating to the real estate of a deceased person, and not the executor or administrator. As a general rule, the personal representatives have only to deal with the personal estate of the deceased, and have no control over the real es- tate. 6 68. Exception where personal estate insufficient to pay debts. Perhaps the most important exception to this rule is where the personal estate of the deceased is not sufficient to pay debts. In that case the executor or administrator may petition the court to sell the real estate for the payment of debts/ And may maintain an action to avoid a conveyance of real estate by his decedent made to defraud creditors, for the purpose of subjecting such real estate to the payment of debts. This may be done before he procures an order to sell such real estate for the payment of debts, but it must be alleged in the complaint that the sale of the real estate is necessary for the payment of the debts of his decedent. 8 (c) R. S. 1881, 2291. burg, etc., Ry. Co. v. Swinney, 97 Ind. (d) R. S. 1881, % 2304-2308. 586. (e) R. S. 1881, 2260; Comparet et (f ) R. S. 1881, 2332. als. v. Randall, 4 Ind. 55; McDonald (g) R. S. 1881, 2 2333, 2334, 2335; v. Hendrix, 67 Ind. 513. But see Pitt*- Love v. Mikals, Adm'r, 11 Ind. 227. IV.] PARTIES. 41 69. "Where no heirs present to take possession of real estate. If, upon the death of a testator or intestate, there be no heir or devisee present to take possession of the real estate, the executor or administrator may take possession of such real estate and do all acts relating thereto which may be for the benefit of the persons entitled to the same. In such case they hold the real estate as the trustees of the heirs or legatees. 11 70. Growing crops. The personal representatives of a decedent are entitled to the annual crops growing on the real estate owned by the decedent at the time of his death, and are the proper parties in any action relating thereto. 1 But the statute gives the widow and minor children the right to occupy the residence and forty acres of land adjacent thereto for one year. During that time the widow and children may maintain an action for possession, for rent, or injury to the possession.-* 71. On bond of administrator or executor. An adminis- trator de bonis ivon is the proper relator in an action on the bond of the former administrator of the same estate. k But the action may be brought by any creditor, heir, legatee, co-executor, or co-administrator also. 1 And where two executors or administrators are appointed, and give a joint bond, with sureties, if one of such executors or adminis- trators resigns his trust, the other may sue him upon the bond, as if it were his separate bond. 1 " 72. For what causes action on bond may be brought. The causes for which such actions may be brought are laid down in the statute as follows : First. Failure to inventory the property of the decedent, to return inventories, appraisement bills, sale bills, reports, and accounts of sale according to la\v. Second. Failure to pay money of the estate into court according to law. (h) R. S. 1881, 2372, 2411; Com- Blkf. 260; Williamson v. Ash, 7 Ind. paret v. Randall, 4 Ind. 55; Guynn v. 495. Jones, Adm'r, 12 Ind. 486; Butt v. (k) R.S. 1881, \ 2458; Myers v. The Clark, 23 Ind. 548. State, 47 Ind. 293 ; Graham v. The (i) R. S. 1881, \ 2200; Humphrey v. State, 7 Ind. 470; The State v. Porter. Merritt, 51 Ind. 197. 9 Ind. 342. (j) R. S. 1881, 2492; Weaver v. (1) R. S. 1881, 2458. Low, 29 Ind. 57 ; Grimes v. Wilson, 4 (m) The State r. Wyant, 67 Ind. 25. Blkf. 331; Taylor v. McCracken, 2 42 PARTIES. [CHAP. Third. Failure to use due diligence in collecting claims due the estate. Fourth. Want of reasonable care in taking solvent sureties to all obligations to secure the purchase-money of any of the property of the decedent. Fifth. Embezzling, concealing, or converting to his own use such property. Sixth. Negligently permitting any of the property of the decedent to be injured. Seventh. For committing any waste upon the real estate of the de- cedent, or knowingly permitting the same to be done, when such real estate is in his possession and control as such executor or adminis- trator. Eighth. Failure to render an account of his proceedings whenever required by the court or the provisions of this act. Ninth. Non-compliance with any order of the court touching the estate. Tenth. Any other violation of the duties of his trust." 73. "When creditor may sue on bond. It was held in Eaton v. Benefield, 2 Blkf. 52, that to entitle a creditor to maintain an action under this statute he must first obtain a judgment against the estate the executor or administrator represents, and that a legatee or distrib- utee could not maintain such action on the bond until his claim had been exhibited and established by law, and payment had been refused by the administrator or executor. Until such steps had been taken he was not an injured party, within the meaning of the statute. This ruling was followed in later cases. But in the case of the State ex rel. Shannon v. Strange, 1 Ind. 53^, all of these cases are in effect overruled. There is no reference made in this case to the other cases decided upon the same point, though one of them appears in the same volume of reports. The question in this latter case involved the question whether a ward might sue his guard- ian on his bond, without first establishing his claim at law, but the court took occasion to say that the statute authorized suits to be brought against administrators or executors by the persons named in the statute, without having first established their claims. This ruling has since been adhered to. p (n) R. S. 1881, 2458. (p) The State v. Kailsback, 7 Ind. (o) Hunt v. White, 1 Ind. 105; 634; The State v. Hughes, 15 Ind. 104; Nicholson v. Carr, 3 Blkf. 104-107 The State v. Clark, 16 Ind. 97; The (note); Wright v. The State, 8 Blkf. State v. Strange, 1 Ind. 538; Heady v. 385. The State, 60 Ind. 316 ; J3escherr>. The State, 63 Ind. 302-317. IV.] PARTIES. 43 74. Action to set aside allowance of fraudulent claim. An action to set aside the allowance of a claim against an estate, on the ground that the same was fraudulently allowed and paid by the executor or administrator, may be brought by the heir or legatee of the deceased against the executor or administrator and the creditor to whom the claim has been allowed and paid. MARRIED WOMEN AS PLAINTIFFS. 75. When may sue alone. Our statute provides generally that a married woman may sue alone : "First. When the action concerns her separate property. Second. When the action is between herself and her husband, but in no case shall she be required to sue or defend by guardian or next friend, except she be under the age of twenty-one years." q In addition to the general statute, it was provided by the code of 1852 : Sec. 794. " Husband and wife may join in all causes of action arising from injuries to the person or character of either and both of them, or from injuries to the property of either and both of them, or arising out of any contract in favor of either and both of them ;" r but this section is omitted in the present statute. By a recent statute a married woman was authorized to sue alone "for damages for any injury to her person or character the same as if she were sole." 8 It has been held by the supreme court that the first of these statutes authorizing a married woman to sue alone is simply permissive, and she may join her husband in an action concerning her separate property.* And there is no reason why the same construction should not be given to the act of 1879." With this construction given to the statute when there is any doubt about whether the wife is authorized to sue alone, it is much safer to join the husband, as he is a proper party plaintiff in all actions brought by the wife, except where he is a necessary defendant. By the present statute a married woman is authorized to sue alone for damages for injuries to her person or character the same as if she were soleJ (q) K. S. 1881, 254; Adams v. Sa- (s) Acts, 1879, p. 160, 6. te'-, 19 Ind. 418; Gee v. Lewis, 20 Ind. (t) Martindale v. Tibbetts, 16 Ind. 1-10; Hollingsworth v. The State, 8 200; Bellows v. McGinnis, 17 Ind. 66; I nd. 257 ; Shockley 17. Shockley, 20 Ind. Gee v. Lewis, 20 Ind. 149. 108; Schurman v. Marlcy, 29 Ind. 458. (u) Pomeroy's Remedies, 238; At- (r) 2 E. S. 1876, p. 313; Griffin v. kinson v. Mott, 102 Ind. 431. Kemp, 46 Ind. 172; Long v. Morrison, (v) K. S. 1881, 5131. 14 Ind. 595. 44 PARTIES. [CHAP. 76. When husband refuses to join in action. It seems not to have been decided by the supreme court whether, in case the hus- band should refuse to join with the wife where he is a necessary party, she could make him a defendant in the action, but it is believed that the statute providing that " if the consent of any one who should have been joined as plaintiff can not be obtained, he may be made a de- fendant, the reason thereof being stated in the complaint," would ap- ply to this as well as any other case, w but it is not sufficient to allege that the husband has abandoned the wife.* As it is necessary that the complaint in every instance should show a cause of action in all of the plaintiffs, where a party is joined simply because he is the husband of his co-plaintiff, that fact must be alleged in the complaint. y 77. "When -wife may sue for husband. Where a husband or father has deserted his family, or is imprisoned, the wife or mother is authorized by statute to prosecute or defend any suits that the husband might have prosecuted or defended. 2 As her right to sue depends upon the desertion or imprisonment of the husband, the complaint must show one or the other of these facts. INFANTS. 78. When may sue. " When an infant shall have a right of ac- tion, such infant shall be entitled to bring suit thereon, and the same shall not be delayed or deferred on account of such infant not being of full age. " a 79. When sole plaintiff must sue by next friend. But when the infant is a sole plaintiff, before process can issue, some com- petent and. responsible person shall consent in writing to appear as the next friend of such infant, and such next friend shall be responsible for cost. b It was held in some of the earlier cases that where suit was brought by a next friend, the complaint must allege that the plaintiff for whom the next friend appeared was an infant, or the complaint would be bad on demurrer. But in the case of Lancaster v. Gould, 46 Ind. 397, the supreme (w) R. S. 1881, I 254. ger, 3 Blkf. 225 ; Lumpkins v. Justice,, (x) Barnett v. Leonard, 66 Ind. 422. 1 Ind. 557 ; Lancaster v. Gould, 46 (y) Griffin v. Kemp, 46 Ind. 172. Ind. 397; Resor v. Resor, 9 Ind. 347; (z) R. S. 1881, l\ 265, 266. Smith v. Kirkpatrick, 58 Ind. 254. (a) R. S. 1881, I 255. (e) Shirley v. Hager, 3 Blkf. 225; (b) R. S. 1881, g 256; Shirley v. Ha- McGillicuddy v. Forsythe, 5 Blkf. 435. IV.] PARTIES. 45 court held that the failure to allege the plaintiff's infancy did not render the complaint bad on demurrer, but the allegation that he sued by next friend should be regarded as surplusage. Although the statute provides in express terms that no process shall issue, where the plaintiff is an infant, until some competent and respon- sible person shall appear as next friend, it has been held, in a late case, that where such process has issued, and the defendant, by way of answer, sets up that the plaintiff is an infant, and the suit is brought without a next friend, a next friend may appear and file the proper consent and undertaking over the objection of the defendant.* 1 The decision is placed upon the ground that the appearance by the next friend, and the necessary allegation in the Complaint after such appearance, was within the right of amendment given by statute. 6 80. May sue as poor person without next friend. The statute does not provide in terms that an infant may sue as a poor person, without complying'with the statute requiring him to sue by next friend, but the two sections relating to poor persons and infants have been so construed as to authorize an infant to sue as a poor person without a next friend. f GUARDIANS AS PLAINTIFFS. 81. When may sue as such. There is no statute in this state authorizing guardians to bring suit for their wards in the name of such guardians generally. The general practice act, as we have seen, only authorizes suits to be brought by next friend, but in that case the suit is brought in the name of the infant. There is no authority given a guardian, in the act relating to guardian and ward, to bring suit in his own name. 8 In section 252 of the statute, subdivision fifth, it is made .the duty of the guardian to " collect all debts due such ward," and the supreme court has said that this implies the authority to collect by suit when necessary. 11 But even this construction would only authorize the guardian to sue for the collection of debts due the ward.(l) The latter clause of section 252 of the code provides that " it shall not be necessary to make an idiot or lunatic a joint party with his guardian or committee, except as may be required by statute."' (d) Greenman v. Cohee, 61 Ind. 201. (h) Shepherd v. Evens, 9 Ind 260; (e) R. S. 1881, \\ 394, 396. Wilson t>. Galey, 103 Ind. 257, 261. (f) Hood v. Pearson, 67 Ind. 368; (1) Wilson v. Galey, 103 lod. 257, R. S. 1881, 260. 261. (g) R. S. 1881, I 2521. Ci) R. S. 1881, 252. 46 PARTIES. . [CHAP. The section does not name guardians of infants, and does not ex- pressly authorize suits to be brought by guardians of idiots or lunatics, unless they are included within the term, " trustees of an express trust." They are not expressly authorized by statute to sue. At common law the suit would be properly brought in the name of the idiot or lunatic, and in suits in chancery the practice was to join the lunatic and his committee in the action. But under the section of the code just cited, it has been held that the suit by a guardian of an insane person is properly brought in the name of the guardian, and that the complaint must show that the right of action is in the insane per- son.J This section, that is confined by its terms to guardians of idiots and lunatics, has been construed to include guardians of infants. k But it is held in a later case that the action must be brought by next friend, and not by guardian. 1 It has been held in some of the later cases that, whether the suit is brought by guardian or next friend, the infant must be regarded as the party. m The importance of determining whether an infant may sue by guardian instead of next friend is evident. If the suit is brought by the guardian, no security for costs need be given, while in the case of a next friend, the person acting as such must be competent and respon- sible, and must acknowledge himself responsible for costs. While there is no decided case, and no statute authorizing the guardian to sue in all cases, the practice of bringing suits in this way is very general, and seems to be recognized as proper by the decisions of the supreme court. 82. For seduction of ward. A guardian is expressly authorized by statute to sue for the seduction of his ward in certain cases. n This section seems not to have received a construction at the hands of the supreme court, but it is the same in legal effect as section 266 of the code, which authorizes a guardian to sue for the injury or death of his ward. And under this latter section it is held that the right of the guardian to sue does not exist, except in case of the death or (j) Bearrs v. Montgomery, 46 Ind. (m) "Whitten v. The State, 36 Ind. 544; Meharry v. Meharry, 59 Ind. 257. 196; Tyler on Coverture and Infancy, (k) Shepherd v. Evens, 9 Ind. 260; p. 192. Pomeroy's Remedies, 182. (n) R. S. 1881, 264. (1) Maxedon v. The State, 24 Ind. (o) R. S. 1881, 266. 370. IV.] PARTIES. 47 \ desertion of his family by, or imprisonment of the father of his ward, and the death of the mother. p But it is held in the case of the Pittsburgh, etc., R. Co. v. Viniug, supra, that the word "child," as used in section 29, must be construed to mean one " who occupies the position of a child to a parent as being dependent upon him for protection, support, and edu- cation," and if the party injured were a minor, but not a "child," within the above definition of the term, the action would be properly brought by the guardian. Section 264 differs from section 266 in this respect. The former section authorizes suit to be brought by the father or mother, " though the daughter be not living with or in the service of the plaintiff at the time of the seduction, or afterwards." Under this section, then, the father or mother could sue, whether the child was dependent upon them or not, and the guardian's right to sue would be subordinate to theirs. In case the father and mother should refuse to sue, the guardian might still bring the action. When the action is brought by the guardian for injury or the seduction of the ward, the damages recovered shall inure to the benefit of his ward. 83. Foreign guardian. A foreign guardian is authorized to sue in this state upon filing an authenticated copy of his or her appoint- ment in the office of the clerk of the circuit court of the county where the suit is to be brought.* 1 84. In settlement of decedents' estates. It is also provided in the act concerning the settlement of decedents 'estates that " in all suits and proceedings instituted under the provisions of this act, in which infants may be plaintiffs, complainants, or defendants, such in- fants shall appear by their guardian at law or guardian ad litem, ap- pointed by the court." r So, under this statute, it is necessary that infant plaintiffs should appear by their legal guardian. " Sec. 2452. The same duties are re- quired of, and the same powers granted to guardians of persons of un- sound mind as are required of and granted to guardians of minors, so far as the same may be applicable." 8 And he may bring suit for his ward.' (p) Ante, 2 65; The O. & M. K. R. State, 53 Ind. 403; Earl v. Dresser, 30 Co. v. Tindall, 13 Ind. 366 ; The Pitts- Ind. 11. burgh, etc., R. R. Co. v. Vining, 27 (r) R. S. 1881, ? 2452. Ind. 513; Hollingsworth v. Sweden- (s) R. S. 1881, 2551. burg, 49 Ind. 378. (t) Bearrs v. Montgomery, 46 Ind. (q) R. S. 1881, 2540; j?hook v. The 544. 48 PARTIES. [CHAP. MISCELLANEOUS. 85. Unmarried female may sue for her own seduction. Under our statute, an unmarried female may prosecute, as plaintiff, an action for her own seduction. u At common law the right of action was in the father or mother, who had a right to her services. It has been held, therefore, that her right to sue depends solely on the statute, and that the complaint must show affirmatively that the plaintiff is an unmarried female. 7 As we have seen, the next section following the one authorizing un- married females to sue for their own seduction, gives the same right of action to the father, mother, or guardian. This right of the father and mother is not limited to minor daughters, and it is expressly pro- vided that they may bring such suit when the daughter is not living with or in their service. w Although the right of the father or mother to sue is not expressly confined to infant daughters, it is believed that such was the intention of the legislature, and that where the daughter is of age the suit should be brought in her own name. This would appear to be the proper construction of the section, as the right of the guardian to sue is coupled with and made the same as that of the parents in case of their death, and for the further reason that the preceding section changes the common-law rule by giving the right of action to the fe- male herself. 86. Actions by poor person. The statute provides for the prosecution of actions by poor persons, but no new right to sue is given or new parties plaintiff made necessary. Xhe statute is only important as affecting the question of cost.* 87. "When proper plaintiff refuses to join in the action. Where a party is a necessary plaintiff, but refuses to join in the action, he may be made a defendant, the reason thereof being stated in the complaint, and in such case the remaining parties may prosecute the action alone. y 88. When parties are numerous, part may sue for all. (u) B. S. 1881, 263. (y) R. S. 1881, 269; post, 93; (v) Thompson v. Young, 51 Ind. Moore v. Jackson, 35 Ind. 360 ; Hill v. 599; Gates v. McKinney, 48 Ind. 562. Marsh, 46 Ind. 218; Shoemaker r. The (w) E. S. 1881, 264. Board of Comm'rs of Grant Co., 36 (x) R. S. 1881, 260. Ind. 175 ; Tate v. The O. & M. R. R Co., 10 Ind. 174. IV.] PARTIES. 49 The code also provides that " when the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring .them all before the court, one or more may sue for the benefit of the whole. " z 89. When surviving partner may sue. Surviving partners are authorized by statute to settle and close up the partnership busi- ness, and are required to file an inventory of the estate of the partner- ship. 8 The right to sue is not expressly conferred upon the surviving part- ner, but the right to settle the partnership business carries with it the right to bring any suits that may be necessary for that purpose. As bearing upon this point, see cases cited in the foot-note. b 90. Assignee for benefit of creditors. When an assignment has been made by a debtor for the benefit of creditors, the assignee is the proper party to bring suit on account of any matters necessary for the settlement of the estate. c 91. For goods shipped C. O. D. Where goods are shipped, marked C. O. D. , the consignor may sue on the contract. " The con- tract of the common carrier is not only to safely carry and deliver the goods to the assignee, but also to collect on delivery, and return to the consignor the charges on the goods." Where the goods are not shipped C. O. D., the consignee is the proper party plaintiff.' 1 92. Persons of unsound mind. Where a party has been de- clared insane, and is under guardianship, an action can not be main- tained in his own name to inquire into the proceedings declaring him insane, nor can he maintain, in his own name, an action to declare his restoration to soundness of mind. The action must be brought in the name of some other person. To sue by next friend is to sue in the name of the party himself, and therefore the joining of a next friend can make no difference. The statute authorizes any person to institute proceedings to declare (z) R. S. 1881, 269; Sourse v. Mar- (b) Krutz v. Craig, 53 Ind. 561; shall, 23 Ind. 194; Shoemaker v. The Skillen v. Jones, 44 Ind. 136; Cobble Board, etc., 36 Ind. 175; Tate v. The v. Tomlinson, 50 Ind. 550. O. & M. R. R. Co., 10 Ind. 174. (c) K. S. 1881, 2671; Foster v. (a) R. S. 1881, $ 6046, 6047; Nick- Brown, 65 Ind. 234. laus v. Dahn, 63 Ind. 87. (d) The U. S. Express Co. v. Keefer, 59 Ind. 263. 50 PARTIES. [CHAP. another of unsound mind, and the section authorizing proceedings to be instituted to declare his restoration to soundness of mind is equally broad in its terms. 6 PARTIES DEFENDANT. 93. Who proper defendants. On the subject of defendants little need be said in this connection. The question as to who should be joined as defendants will be considered in the chapter on joinder of parties. It may be said, generally, that all persons who are necessary parties to the action, not proper plaintiffs, should be made defendants, and that, generally, where parties have been shown to be proper plaint- iffs, they would be proper defendants if the cause were reversed. This is not true, however, in the case of infants. We have seen that, as plaintiffs, they are required by the statute to appear by next friend, and, in certain cases, by their legal guardian.' They may be sued and brought into court as other persons, and, as defendants, must defend by guardian ad litem, appointed by the court, or selected by them, with the consent of the court, or by their legal guardian. 5 Notwithstanding it is made the duty of the legal guardian to appear and defend all suits brought against his ward, it has been held that the court may appoint a guardian ad litem, to defend an infant, where he has a legal guardian. h Parties who are proper plaintiffs, and should be joined as such, be- come proper defendants by their refusal to join as plaintiffs ; in which case, it is necessary that the complaint should show the reason for their being made defendants. 1 (e) K. S. 1881, 2545,2552; Gilles- Ibid., 888; Ibid., 2452; Ibid., pie v. Thompson, 7 Ind. 353; Meharry 2598; Ibid., 2520; Ibid., 355; Ibid., v. Meharry, 59 Ind. 257. ' 2521 ; Abdill v. Abdill, 26 Ind. 287. (f) Ante, 79. (h) Alexander v. Frary, 9 Ind. 481. (g) R. S. 1881, 258; Ibid., 2344; (i) R. S. 1881, 269; ante, 87. V-] JOINDER OF PARTIES. 51 CHAPTER V. JOINDER OF PARTIES. SECTION . 94. Object of the code. 95. All parties united in interest must be joined as plaintiffs. 96. When persons having an interest need not be joined. 97. What is meant by unity of inter- est. 98. Changes wrought by the code; unity of interest. 99. The authorities. 100. Application of the rule. 101. Effect of joining too many plaint- iffs. 102. Authorities inconsistent with the statute. 103. Executors, administrators, trustees of express trusts, or guardians may sue alone. 104. The statute authorizing joinder liberally construed. 105. When one party may sue for all. 106. In actions relating to real estate; tenants in common. 107. Actions to recover real estate. 108. By trustee to foreclose mortgage. 109. Actions to contest wills. 110. Married women. 111. Actions for injury to the wife. 112. Who must sue for injury causing the death of the wife. 113. Must be some person entitled to damages recovered, or no action can be maintained. 114. Two causes of action arise in case of injury to wife; when hus- band may sue. 115. On notes held by different par- ties, secured by same mortgage, parties can not join as plaintiffs. SECTION . WHO MAT BE JOINED AS DEFENDANTS. 116. The statute. 117. Necessary parties must be, and proper parties may be, joined. 118. Who are necessary defendants. 119. Who are proper defendants. 120. In actions on joint contracts. 121. Several judgments may be re- covered against parties jointly sued. 122. Only parties liable in the same right should be joined. 123. In actions on notes and bills. 124. Executor or administrator of joint contractor can not be joined with survivor. 125. Official bonds, and bonds of executors, administrators, and guardians, may be treated as joint or several. 126. All or any of the parties severally or jointly and severally liable may be sued, at the plaintiff's option. 127. Principal and surety may be joined, but principal and guar- antor can not. 128. When indorser may be joined with maker of promissory note or drawer of bill of exchange. 129. What promissory notes are ne- gotiable by the law of this state. 130. When individual members may be sued for debts of corpora- tion. 131. In action by assignee, without indorsement, assignor must be joined. JOINDER OF PARTIES. [CHAP. NECESSARY DEFENDANTS IN ACTIONS FOR SPECIFIC PERFORMANCE OF CONTRACTS TO CONVEY HEAL ES- TATE. 132. By vendee. 133. By vendor. 134. Where vendor is dead. IN FORECLOSURE OF MORTGAGES. 135. Necessary and proper parties. 136. Where several notes secured by the same mortgage are held by different parties. 137. When wife necessary party in foreclosure against husband ; where wife does not join in mortgage. 138. Effect of statute making wife's interest absolute on judicial sale. 139. Wife can not maintain an action for partition, where mortgage is assumed by husband for pur- chase-money. 140. Who must be made defendants, mortgagor being dead. 141. Owner of real estate must be made a defendant. 142. Mortgagor who has conveyed real estate not a necessary party. 143. When mortgagor has conveyed part of real estate mortgaged. 144. If mortgagor deceased, personal representatives not necessary parties. 145. Junior incumbrancers proper but not necessary parties. 146. Pcndente lite purchasers. 147. Heirs of purchaser. 148. Prior incumbrancers. 149. Surviving partner. PARTNERSHIP CONTRACTS. 150. Common law rule, where one partner is deceased. 151. Equitable rule. 152. Under the code. 153. The authorities under the code. 154. Effect of the authorities. 155. Dormant partners. 156. Nominal partners. ACTIONS TO PARTITION REAL ESTATE. 157. All the owners necessary par- ties. 158. Creditors, 159. Parties holding liens on individ- ual interests. 160. Parties laboring under legal disa- bilities. 161. Where the state is interested. 162. In actions to reinstate lost or de- stroyed papers or records. 94. Object of the code. It is the great object of our code that all persons interested in any legal controversy shall be brought before the court in one proceeding, either as plaintiffs or defendants, that un- necessary litigation may be avoided. It may be laid down as a general proposition, that under our present system of practice and pleading, all parties having an interest in the controversy may be made parties to the action, and will be bound by the judgment of the court. The common-law rule as to necessary parties plaintiff is changed in only two material respects. The common law required that all parties having a joint interest must be joined as plaintiffs. To this there was no exception. The refusal of one of the parties interested to join in the action was, under this arbitrary rule, an absolute bar to a recovery by the others. In equity the rule was that a party who was a V.] JOIXDER OF PARTIES. 53 necessary plaintiff, but refused to join as such, might be made a de- fendant. 95. All parties united in interest must be joined as plaintiffs. Our statute provides: "Sec. 269. Of the parties in the action those who are united in interest must be joined as plaintiffs or defendants ; but if the consent of any one who should have been joined as plaintiff can not be obtained, he may be made a defendant, the rea- son thereof being stated in the complaint ; and when the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole." a Under this statute, the requirement that all parties who are united in interest must be joined as plaintiffs is as imperative now as it was at common law, except : 1. Where one who should be joined refuses to become a plaintiff; and, 2. Where the parties have a common or general interest, or are so numerous as to make it impracticable to bring them before the court. The first exception does not avoid the necessity of making the party who refuses to join as plaintiff a party to the suit. The failure to make such person a party defendant would be as fatal to the plaintiff's right to recover as if he had been omitted as a plaintiff without cause. And the reason for making such party a defendant must be stated in the complaint. b The second exception makes it unnecessary to join the parties, either as plaintiffs or defendants ; but in this case, as in the other, the com- plaint should show that the parties omitted have such an interest as would render them proper plaintiffs ; that the plaintiffs sue for them- selves and others interested, and the reason for failing to join them in the action. The effect of this provision is that the action is one by all the parties interested. Their names only are omitted, and the party named as plaintiff stands as the representative of all the persons for whom he sues. c 96. When persons having an interest need not be joined. We have this farther statute on the subject of parties : " Sec. 262. All persons having an interest in the subject of the action, and in obtain- ing the relief demanded, shall be joined as plaintiffs, except as other- (a) R. S. 1881, 269. (c) Tate v. The O. & M. R. R. Co., (b) Shoemaker v. The Board of 10 Ind. 174. Comm'rs, etc., 36 Ind. 175; Hill v. Marsh, 46 Ind. 218; Johnson v. Gwinn, 100 Ind. 466. 54 JOINDER OF PARTIES. [CHAP. wise provided in this chapter." d It is important, in considering the effect of this statute, to determine what are the exceptions referred to as " provided in this chapter." This question was considered in the case of Durham v. Hall, 67 Ind. 123, in which, after quoting the above section, the supreme court say : " The exceptions referred to in this section are where suits are brought by an executor, administrator, trustee of an express trust, or by a per- son expressly authorized by statute, or where one or more of several refuse his or their consent to join as plaintiffe, or where the case is one of a common or general interest to many persons, or where the parties are so numerous as to render it impracticable to bring them all before the court. See sections 4 and 19 of the practice act." With the exceptions named in this decision, then, all persons having a unity of interest must be joined as plaintiffs. 97. What is meant by unity of interest. The great difficulty in construing this statute has turned upon the question, what must be the respective interests of the parties to authorize them to join as plaintiffs ? At common law the parties must not only have an interest in the controversy, but they must have the same interest. The practice now so common of rendering different judgments in favor of different plaint- iffs, in the same action, was unknown to the common law. Under the old system but one judgment could be rendered in the action in favor of all of the plaintiffs jointly. In equity the rule was different. While there must be a unity of interests, it was not necessary that their in- terests should be the same. In some of the states having a code simi- lar to ours, the courts have held that it was not the legislative intent to change the common law in this respect, in common-law actions, and that the statutory provision that parties having different interests in the same subject-matter could join as plaintiffs must be confined to equitable proceedings ; but this falls very far short of carrying out the intent of the reform legislation on this subject. Under our code, we have but one action. Whether the relief sought is legal or equitable, the means of obtaining it, so far as the manner of bringing the suit is concerned, is the same. The section providing that there shall be no distinction in pleading and practice between actions at law and suits in equity is followed by this one providing who shall be joined as plaint- iffs and defendants in this one form of action denominated a " civil ac- tion." There is no distinction made in this section between actions at law and suits in equity, because no such distinction exists under the (d) R. S. 1881,262. V.] JOINDER OF PARTIES. 55 preceding section of the same statute. Mr. Pomeroj, in his admirable work on Kemedial Rights, in speaking on this subject, says: "Re-' ferring to these provisions, it is plain that their language is general, in- clusive, without exception, and applying alike to all kinds and classes of actions. Whatever doctrines in reference to parties plaintiff the legislature has adopted; whatever regulations it has established, its in- tention, as shown by the language of all the codes but one or two, is to apply them equally to legal and to equitable actions. No exceptions being made, nor even suggested, the courts can not, unless by an act of positive legislation, by an act of direct usurpation, create an excep- tion and say these general terms were intended to apply to equitable suits alone, while legal actions were intended to be left outside of their scope and effect." 6 The supreme court of this state has, in laying down the general principle of construction, given the statute the same broad scope. f The application of the rule in particular cases has not, as we shall see hereafter, been in entire harmony with the rule itself, 8 98. Changes wrought by the code; unity of interest. Having shown that in this state, whatever may be the' construction placed upon it elsewhere, the section quoted applies as well to actions at law as to suits in equity, the question recurs, what change has this provision of the code wrought in the law of parties ? We have already seen that with the two exceptions named the code is the same as the common law as to the necessity of uniting in one action, as plaintiffs, all persons Avho have a joint interest. The effect of the code is rather to allow a greater number of plaintiffs. Parties may now be joined as plaintiffs who were not proper plaintiffs under the old system. But even under the present system, and the liberal construction placed upon a part of its provisions by our supreme court, there must still be a unity of interest between the parties to allow them to join as plaintiffs. Several interests can not be enforced in the same action, although they may grow out of or form a part of the same contract. That the contract under which the parties claim is the same can not settle their right to join in the action. If there is a unity of interest in the money or specific thing to be recovered, the parties are properly joined as plaintiffs. The true test of their right to join must be their interest in the judgment they may be entitled to recover. (e) Pomeroy's Kemedies, 195. 10 Ind. 174; Goodnight v. Goar, 30 (f ) Tate v. The O. & M. R. R. Co., Ind. 418; Maple v. Beach. 43 Ind. 51. (g) Post, H 99, 100. 56 JOINDER OF PARTIES. [CHAP. 99. The authorities. In the case of Tate v. The O. & M. R. R. Co., 10 Ind. 174, the question of the effect to be given to the language of this section came before our own supreme court. The action was brought by William Tate and ten others, each of whom owned lots fronting on a certain street in the city of Lawrenceburg, to compel the railroad company to fill up the street fronting their lots, in which street the company had erected an embankment and trestle work for her road bed, so as to make the street passable or to remove the road. There was a demurrer to the complaint, on the ground of misjoinder of plaintiffs, which presented the question whether these parties were entitled to join as plaintiffs. After quoting sections 262 and 269 (17 and 19 of the old code), the court say, per Davison, J.: " These pro- visions substantially re-enact the old equity rules on the subject of parties. All who are united in interest must join in the suit, unless they are so numerous as to render it impracticable to bring them all before the court, while those who have only a common or general in- terest in the controversy may, one or more of them, institute an action. This, however, must not be understood as allowing, in all cases, two or more persons, having separate causes of action against the same de- fendant, though arising out of the same transaction, (o unite and pur- sue their remedies in one action. Several plaintiffs, by one complaint, can not demand several matters of relief which are plainly distinct and unconnected ; nor can they enforce joint and separate demands against the same defendant. But where one general right is claimed where there is one common interest among all the plaintiffs, centering in the point in issue in the cause the objection of improper parties can not be maintained." h With this construction of the statute, it was held that the parties were properly joined. In Goodnight v. Goar, 30 Ind. 418, this question was again pre- sented. The following instrument was sued upon : "JEFFERSON TOWNSHIP, TIPTON COUNTY, INDIANA. " We, the undersigned citizens of said township, agree and bind ourselves, in case either of us is drafted into the service of the United States, to pay our proportionable amount to hire substitutes to fill our places ; and this we agree not only for the present impending draft, but for all other calls that may be made during the present rebellion, unless a majority shall abandon the above arrangement." Signed by five persons. The suit was brought on this contract by three of its signers against the others, alleging that the plaintiffs had (h) 11 Barb. (S. C. R.) 516; 15 Id. 375; Van Sant. PI. 130et seq.; 1 Barb, Ch. 59; Heagy v. Black, 90 Ind. 534. V.] JOINDER OF PARTIES. 57 been drafted, and had each been compelled to pay certain sums of money differing in amount for a substitute, and that the defendants were not drafted. The question presented was whether the plaintiffs had such an interest as would entitle them to maintain a joint action on the contract. The court say: "The code itself is not exactly definite as to who may be joined as plaintiffs. It provides, however, that judgment may be given for or against one. or more of several plaintiffs, Avhich was the practice in equity, though it was otherwise at law. It also provides that all persons having an interest in the sub- ject of the action, and in obtaining the relief demanded, shall be joined as plaintiffs, except in certain cases mentioned in the nineteenth section. Indeed, the code seems to have re-enacted the rules which had prevailed in courts of equity as to who must join as plaintiffs, and may be joined as defendants. But as to those cases in which, in equity, plaintiffs might or might not have joined, at their option, the code does not expressly speak, for the reason, probably, that the gen- eral rule in equity in relation to parties plaintiff was not founded upon any uniform principle, and could not be expounded by any universal theorem as a test. And it may have been thought safer, therefore, to leave each case to be decided by the courts upon authority and analogy. That it was intended that the rules of pleading in courts of equity should govern the subject is quite evident from those provisions of the code which prescribe the relief to be granted, and to whom ; in this respect conforming in all respects to the established practice of those courts a mode of administration quite impracticable in a great many cases, unless the parties might be as in chancery. The present inquiry is, then, in view of the consideration above stated, reduced to this : Could these plaintiffs formerly have joined in chancery? In solving this question we may be aided by considering the nature of the con- tract upon which the suit is brought. The obligations which it imposes are strictly several, each party for himself alone becoming bound in a certain event to pay. The obligation thus assumed is under the facts alleged to each one of the plaintiffs separately, by each defendant, for one-fifth of such sum as that plaintiff was obliged to pay for a substi- tute for himself. In the case before us there is in the plaintiffs no community of interest in any matter involved in the suit; no right common to all is claimed ; every thing is separate, save only that the ight asserted by each is founded in a contract which, for convenience, happens to be on the same sheet of paper. We have failed to find any warrant in the adjudged cases for a joinder of plaintiffs under such circumstances." The opinion in this case has been thus fully set out because it con- 58 JOINDER OF PARTIES. [CHAP. tains a full and correct statement of the construction to be given to the section under consideration. 100. Application of the rule. Notwithstanding this clear ex- position of the law in this state, declaring that the intention of the legislature was to adopt the equity rules as to parties, this construction has not been fully accepted by members of the profession who prac- ticed under the old system. Innovations upon that system are re- garded with suspicion, and the statutes containing them are given the narrowest possible construction. It must be admitted by all that the distinctions between actions at law and suits in equity are, in effect, abolished by the statute ; but, in the place of the real line that divided these two classes of actions, an imaginary line is drawn, and the at- tempt is made to maintain the distinction that once existed in all things save the name. This effort on the part of old practitioners to keep alive this distinction that has, in fact, no existence, has caused a great part of the confusion that exists in the practice and pleading in this state. Mr. Iglehart, in his work on practice, shows himself to belong to that class of the profession in this state that maintains and keeps alive this distinction. He says : "It has been said that the code adopts the chancery rule as to parties, but this remark only applies in a qualified sense. Where tJie action would Jiave been at law before the code, the common law rule still prevails, except as expressly modified, with, perhaps, this exception, that in cases even where, before the code, the remedy was at law, but where the action relates to property, real, personal, or mixed, the chancery rule as to parties generally applies, as will here- after appear. But in actions for the recovery of money, the code has wrought no material change in the rules as to parties, with the excep- tion of the cases specially mentioned, and which will be noted here- after. But where the remedy would be by bill in chancery, the equity rule prevails."* This same construction is maintained by the learned author in defin- ing who are proper parties defendant under the code: "It may be generally remarked that all who would be proper parties defendant in a common law action are proper parties defendant in civil actions un- der the code, where the remedy would have been by action at law be- fore its adoption. . . . All persons who would have been proper parties defendant to a bill in equity are proper parties defendant to a civil action, in cases where the remedy before the code was in a court of equity. "J (i) Iglehart's Practice, p. 29, 3. (j) Iglehart's Practice, p. 33, 16. V.] JOINDER OF PARTIES. 59 This is to say that the legislature intended to enact that, hereafter, the names by which common law actions and suits in equity are dis- tinguished are abolished, and the remedy shall, determine what the practice in each case shall be, and the proper parties to the action. If the remedy is a common law remedy, the common law rule as to parties shall prevail ; if the remedy is equitable, the rules in equitable pro- ceedings shall prevail. If such is the construction to be given to the statute, the distinction still exists in practice. But the supreme court has held, as I have shown, that such was not the intention of the legislature. The question, who are proper parties, does not depend in the least upon the question whether, under the oH system, the remedy would have been at common law or in equity. It is said that the equity rule as to parties is adopted. It would be more correct to say that the rules adopted are substantially the same as those in equity. We need not look to what the rules in equity were, as would be the case if those rules were adopted. We must look to the statute, and the statute must furnish the rule, independent of the ques- tion, what would the action or the remedy have been at common law or in equity. The idea that in common-law cases the common-law rules are adopted, " except in certain cases," arises from the fact that iu certain, common-law cases the rule as to the parties is the same as in equity. In such cases, the common-law rule is adopted in the sense that it is not changed. k Under the common-law rule, as we have already stated, the complaint must not only show a unity of interest on the part of plaintiffs, but their interest must be the same. The result of this rule was that if the parties suing failed to prove such, an interest on the trial they must fail in their action. If a cause of action was shown in one of the plaintiffs, but not the other, the one entitled to judgment must resort to another action. This was the legitimate result of the unvarying rule that the rights of the plaintiffs must be the same. 101. Effect of joining too many plaintiffs. The question of inisjoinder of parties plaintiff has been fully and thoroughly considered in more than one case, and the rule that where two or more persons bring suit, and no cause of action is shown in either, the complaint is (k) Scott i7. Crawford, 12 Ind. 410; v. Kiger, 23 Ind. 483; Swift v. Ells- fccoby v. Fenton, 39 Ind. 275; Matlock worth, 10 Ind. 205; Frear v. Bryan, ?'. Todd, 25 Ind. 128; Woodford v. 12 Ind. 343; Conklin v. Bowman, 11 Leaven worth, 14 Ind. 311; Emmons Ind. 254. 60 JOINDER OF PARTIES. [CHAP. bad, not only as to the party in whom no cause of action is shown, but as to all of the plaintiffs, has been strongly adhered to. In some of these cases it is stated in unqualified language that " when two or more plaintiffs unite in bringing a joint action, and the facts stated do not show a joint cause of action in them, a demurrer will lie upon the the ground that the complaint does not state facts sufficient to consti- tute a cause of action ;" but, upon an examination of the cases, it will be found that where the demurrers were sustained it was on the ground that the complaint, as to some of the plaintiffs, disclosed no cause of action, or the causes of action were strictly several. The use of this language must be taken to mean a unity of interest, and not a joint in- terest, in the sense in which that term was used at common law. 1 The authorities cited must settle the question in this state, that in case of a joinder of two or more plaintiffs, where the causes of action are several, or where, as to one or more, no cause of action is shown, the complaint is bad as to all on demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action. We have, however, another section of the statute that tends strongly to show that it was not the intention of the legislature that such con- struction should be given to the section quoted above. It pro- vides : " Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants ; and it may, when the justice of the case requires it, determine the ultimate right of the parties on each side as between themselves." m It lias been held, under this section, that a judgment may be rendered in favor of one or more plaintiffs and against others, when they sue jointly." 102. Authorities inconsistent with the statute. AVhile it must be admitted that the law is clearly settled, by the authorities cited, that the want of a cause of action in one of two plaintiffs suing jointly renders the complaint bad as to both, on demurrer, it is equally clear that these cases are utterly inconsistent with the general theory, well established in this state, that the equitable rules as to parties pre- vail, and with the statute last quoted, which authorizes not only differ- ent judgments for different plaintiffs suing jointly, but judgment in (1) Berkshire v. Shultz, 25 Ind. 523; (m) R. S. 1881, f 568. Debolt v. Carter, 31 Ind. 355; Good- (n) Hunt v. Standart, 15 Ind. So: nijht v. Goar, 30 Ind. 418 ; Lipperd v. Berkshire v. Shultz, 25 Ind. 5'2H; Edwards, 39 Ind. 165; Neal v. Tho Mandlove v. Lewi?, 9 Ind. 194; Par- State, 49 Ind. 51; Davenport v. Me- ker v. Small, 58 Ind. 349; Lockwood Cole, 28 Ind. 495; Yater v. The State, v. Joab, 27 Ind. 423. 58 Ind. 299 ; Ward v. Bennett, 20 Ind. 440; Nave v. Hadley. 74 Ind. 155. V.] JOINDER OF PARTIES. 61 favor of one ana against others. It is true the statute does not au- thorize a demurrer for misjoinder of parties, but it does authorize the court to strike out the name of the plaintiff in whom no cause of ac.- tion is shown. The failure of the legislature to make a misjoinder of parties cause for demurrer indicates clearly that it was the legislative intent that such misjoinder should not be a sufficient ground of de- murrer. The court has so construed it as to mean that this cause is included in the general one that the complaint does not state facts suf- ficient to constitute a cause of action. The result is, that if there should be a judgment on demurrer on the ground that no cause of ac- tion is shown in one of the plaintiffs, the judgment must be against all of the plaintiffs, where it is admitted that the complaint shows a cause of action in one or more, but if the defendant fails to demur and upon the trial the evidence discloses the same state of facts, judgment may be rendered in favor of those in whom a cause of action is shown and against the others. Would it not have been more in harmony with the provisions of the code to have held that the misjoinder was not a cause for demurrer ? In the case of Berkshire v. Shultz the court say : " Section 368 of the code (438 New Code) provides that judgment may be given for or against one or more of several plaintiffs. This section enables the court, upon the hearing, to render judgment against a plaintiff who, from the evidence, is shown to have no interest in the subject of the action, and in favor of a co-plaintiff who is entitled to recover. But when the want of such interest is apparent on the face of the complaint, it would be useless as well as unjust that the defend- ant should be compelled to litigate a cause with him until the final hearing. It would be a misjoinder of plaintiffs, which, we think, may be taken advantage of by demurrer." To this plea of hardship and injustice it may be answered, that the defendant had another remedy by which to relieve himself from the necessity of litigating the cause with the plaintiff improperly joined. It has been held that "many defects may exist in pleadings besides the six which by statute may be reached by demurrer. These must be objected to and removed upon motion." The better practice would be to compel the defendant to resort to his motion to strike out the names of such parties as have no ause of action or a several one, differing from the one for which judg- ment is demanded in the complaint or authorized by its allegations. 103. Executors, administrators, trustees of express trusts, or guardians may sue alone. It has already been shown that (o) Campbell v. Swasey, 12 Ind. 70; 15 Ind. 361; The Indianapolis, etc., R. Johnson v. The Crawfordsville, etc., U. R. Co. v. Taffe, 11 Ind. 458. R. Co., 11 Ind. 280; Wells v. Dickey, 62 JOINDER OF PARTIES. [CHAP. where an action is brought by an executor, administrator, or trustee of an express trust, or guardians of idiots and lunatics, the person for whose benefit suit is brought, need not be joined as plaintiff, and that this rule, expressly provided by statute, has been extended to guardians of infants by the supreme court. p But in this class of cases it is said that the action is really prosecuted by the idiot, lunatic, or infant, and for his benefit, which would make him the real party in interest. This is a departure from the statute requiring that the action must be prosecuted in the name of the real party in interest, aud these excep- tions should not be extended beyond the plain terms of the statute. 104. The statute authorizing joinder liberally construed. While the rule has been laid down that parties who join in a com- plaint and fail to show a joint interest, must fail in their action in case of a demurrer to the complaint for want of sufficient facts stated, the supreme court have been extremely liberal in permitting the joinder of parties plaintiff. The unqualified language used in passing upon these demurrers would enforce the common-law rule in all its strictness, but the particular cases where the question of the joinder of parties is raised and passed upon are in entire harmony with the theory that the code enacts the equity rule as to parties. Thus, in the case where this rule as to the demurrer was first declared, the action was brought jointly by a creditor, and the owner of real estate sold on execution, against the purchaser, to redeem, and it was held that the plaintiffs were properly joined. q And where an order was made by the board of county commissioners of Franklin county that the sum of $117,600 should be applied to pay bounties to such persons as might volunteer to fill the quota of that county, under a call for 500,000 men for the United States service, not more than 8300 to be paid to each, suit was brought by eighty-five persons jointly, alleging the making of the order, and that they had volunteered. It was held that they were properly joined as plaintiffs and were entitled to recover the sum of $25,800, their pro rcda share of the whole amount, at $300 each/ This was strictly a common-law action to recover money, and the parties suing were not entitled to re- cover the whole amount jointly, but each was entitled to recover $300 of the amount. The decision was clearly right under the statute, if the liberal construction is given it that the equitable rule applies to common-law as well as other cases. There is such a unity of interest as brings it within the statute, but not the joint interest that would (p) Ante, ? 60, 81. (r) Young v. The Board, etc., 25 Ind. (q) Berkshire v. Shultz, 25 Ind. 523. 295. V.] JOINDER OF PARTIES. 63 have entitled the parties to join in an action at common law. Each would have been compelled to sue for the $300 that was due him. Parties who own separate pieces of property fronting on a street have been held to be properly joined in an action to abate a nuisance affecting all of the property." Mr. Iglehart, in his work on practice, -says, in speaking of this case : "This is scarcely reconcilable with principle or authority elsewhere, as both the right, the wrong, and the injury are separate and several, and not joint, and it is very clear that, by the chancery rule, this is not admissible ; but it may be regarded as settled in this state." ' The terms of the statute are amply broad enough to cover the case." Where an insolvent debtor entered into a contract with a third party, by which the latter bound himself to pay certain debts of the former, it was held that such debtor might join as plaintiff with one of his creditors, against such third party, to compel the payment of one of the debts embraced in the contract. 7 There was a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and it was in- sisted that there was no "joint right of action shown." It must be admitted that, if the rule as laid down in Berkshire v. Shultz, and fol- lowed in later cases, is to be taken as it is expressed, that the complaint must show a joint cause of action in all of the plaintiffs, the complaint in this case would have been subject to demurrer. There was no joint cause of action shown. There could- be no joint judgment rendered in favor of the plaintiffs, and this is the test of a joint right at common law. The parties are regarded as one, and but one judgment can be rendered in solido in favor of all. But the supreme court avoids this complication by claiming that this case is not within the rule thus laid down. The court say: "But it is said by the appellant's learned counsel that there is no joint right of action shown in the complaint by and between the Gwyns and their co-appellee, James H. Hall, and that, for this reason, the appellant's demurrer to the complaint for the want of sufficient facts therein, ought to have been sustained. In support of this point, counsel have cited the decision of this court in the case of Berkshire v. Shultz, 25 Ind. 523. It is the law in this state, as settled by many decisions of this court, that a complaint by two or more plaintiffs must state a good cause of action in favor of both or all of the parties plaintiffs, or otherwise a demurrer thereto for want of (s) Tate v. The O. & M. R. K. Co., ing Hudson v. Maddison, 12 Sim. 416; 10 Ind. 174. 1 Daniell's Ch. Pr. 350 (note 3). (t) Iglehart's Practice, p. 3, 9, cit- (u) R. S. 1881, 262. (v) Durham r. Hall, 67 Ind. 123. 64 JOINDER OF PARTIES. [CHAP. sufficient facts to constitute a cause of action must be sustained. w But it seems to us that this rule of pleading is not applicable to the complaint in the case at bar." It must be noticed that the learned judge who delivered the opinion in this case does not state the rule laid down in the other cases cor- rectly. The rule, as stated here, is, that the complaint must state " a good cause of action in all of the plaintiffs," while the rule as decided in the case of Berkshire v. Shultz, and followed in the other cases re- ferred to, is that the complaint must show a "joint cause of action in all of the plaintiffs." This is a very material modification of the rule, and would authorize parties having different causes of action growing out of the same subject-matter to join as plaintiffs. This I have al- ready attempted to show was the intention of the legislature in enact- ing the code, but the cases are clearly the other way. The supreme court say the case under consideration is not within the rule even as stated by the court, and the reason is given: "In section 17 of the practice act (262 of new code) it is provided that all persons having an interest in the subject of the action, and in obtaining the relief de- manded, shall be joined as plaintiffs except as otherwise provided in this article. The exceptions referred to in this section are where suits are brought by an executor or administrator, trustee of an express trust, or by a person expressly authorized by statute, or where one or more of several refuse his or their consent to join as plaintiffs, or where the case is one of a common or general interest to many persons, or where the parties are so numerous as to render it impracticable to bring them all before the court. See sections 4 and 19 of the practice act (269 new code). It is clear that this case does not fall within any of these exceptions, and therefore it is equally clear that, as to the point now under consideration, the case must be governed by the general rule as stated in said section 17. It can not be doubted that the Gwyns, as well as the appellee, Hall, had an interest in the subject of this action, and in obtaining the relief therein demanded. Under the contract sued on in this action, the appellees, Israel B. and James R. Gwyn, had conveyed, transferred, and delivered to the appellant, Dur- ham, all of their property, real and personal, upon the faith of his agreement that, with the proceeds of such property, he would settle all debts owing by them and effect a final adjustment of their busine?*. The Gwyns owed their co-appellee, James H. Hall, the debt sued f'r in this action, and the Gwyns, as well as Hall, had an interest in the subject of this action, and in obtaining the relief demanded, namely, (w) Citing Lipperd v. Edwards, 39 172; Neal v. The State, 49 Ind. 51; Ind. 165; Griffin v. Kemp, 4G Tnd. Parker v. Small, 58 Ind. 349. V.] JOINDER OF PARTIES. 65 the application by Durham of the proceeds of their property in his hands to the payment of their debt to their co-plaintiff and co-appellee, James H. Hall. The Gwyns and Hall were, therefore, properly joined as plaintiffs under the provisions of said section 17 of the prac- tice act." It will be seen that the effort is made to show that the case is not within the rule laid down in the case of Berkshire v. Shultz, and the reason given is that the case is not within any of the exceptions of sec- tion 262 of the practice act. The force of the reason given is not ap- parent, especially when it is noticed that the very case in which the rule was established was not within any of the exceptions of the statute. It is true that in that case the demurrer was overruled, but it was not on the ground that the parties were not within any of the exceptions in the statute. Does the court mean to say that unless the case falls within one of the exceptions in the statute parties who have an interest in the subject-matter of the action may join as plaintiffs, whether their right of action is joint or several ? If so, the case must be regarded as a complete abandonment of the rule laid down in Berkshire v. Shultz, and that case and cases following it should have been so modified as to state the rule correctly. Much of the confusion in our practice grows out of the fact that rules established by former decisions are abandoned by those of a later date, without any modification of the former cases, or any effort to point out the change that is adopted. The profession is thus left to take different rules, as laid down, and attempt to sort out the meaning of the supreme court from these contradictory decis- ions. It may be noted as a curious fact, that while the court in the case cited refuses to apply the rule as established in the other cases, for the reason that this case is " not within any of the exceptions in the statute," every case cited as establishing the rule is in precisely the same condition. Not one of them is within any of the exceptions in the statute. 1 It is said that the Gwyns had such an interest in the subject of the action as would authorize them to join as plaintiffs, for the reason that it was to their interest to see that their property was applied to the payment of their debts. The complaint shows that the action was not one to compel the de- fendant to apply property to the payment of a debt. It was simply an action to recover a debt that a third party had promised, for a suf- ficient consideration, to " settle" under certain conditions. It was al- leged in the complaint that the creditor had accepted the terms of the (x) Shoemaker v. The Board, etc., 36 Ind. 175. 5 * 66 JOINDER OP PARTIES. [CHAP. agreement, and demanded payment from the third party. In this class of cases it is well settled that the creditor may sue the party who as- sumes the payment of the debt without joining the original creditor. y When this case of Durham v. Bischof was first before the supreme court it was decided that the Gwyns should have been made defend- ants. 2 And that would have been much the better practice. 3 In the case of Hardy v. Blazer the defendants had agreed to pay the debts of A., without specifying the debts, and B., one of the cred- itors, brought his suit to recover his debt without joining A. as a party either as plaintiff or defendant. It was held that the creditor was the proper party to bring the action, and that A. was a necessary party defendant. 1 " Where property was taken by the sheriff on two executions in favor of different persons, and one delivery bond was given, the execution defendant refusing to deliver the property, suit was brought by both of the execution plaintiffs on the bond. It was objected that the action could not be maintained, " because the interests were several, and the relief prayed for was joint," but the court held that the plaintiffs had such an interest in the subject-matter as would entitle them to sue un- der section 262, and that a judgment for each of the plaintiffs for the amount due him was proper. 105. When one party may sue for all. The statute authorizes one or more to sue for the benefit of all, where the parties interested are numerous, and it is impracticable to bring them all before the court. d This clause of the statute is not definite in its terms, and has need of construction. It has been held that the complaint need not show, in such case, that the persons for whom the plaintiff sues belong to any association or class, but that it is only necessary to describe the persons interested with as much certainty as the nature of the contro- versy will admit. 6 (y) Bird v. Lanius, 7 Ind. 615; De- Arnold v. Lyman, 17 Mass. 400; Fitch vol v. Mclntosh, 23 Ind. 529; Cross r. v. Chandler, 4 Gush. 254; Hall v. Mar- Truesdale, "28 Ind. 44; Day v. Patter- ston, 17 Mass. 575; Felch v. Taylor, 13 son, 18 Ind. 114; Mathews v. Ritenour, Pick. 133; Carnegie v. Morrison, 2 31 Ind. 31 ; Davis r. Galloway. 30 Ind. Met. 381 ; Hinkley v. Fowler, 15 Me. 112; Miller t>. Billingsley, 41 Ind. 489; 285; Mellen, Adm'x, v. Whipple, 1 Hardy v. Blazer, 29 Ind. 226. Gray, 317. (z) Durham v. Bischof, 47 Ind. 211. (c) Mandlove v. Lewis, 9 Ind. 194. (a) Hardy T. Blazer, 29 Ind. 226. (d) R. S. 1881, 269. (b) Citing Elwoodt). Monk, 5Wend. (e) Sourse v. Marshall, 23 Ind. 194. 235 ; Beers v. Robinson, 9 Pa. St. 229 ; V.] JOINDER OF PARTIES. 67 This being one of the exceptions to the rule requiring that all those having an interest in the controversy should be joined, the facts neces- sary to bring the case within the exception should be stated in the complaint. The party who sues must have an interest in the contro- versy common with those for whom he sues, and there must be that unity of interest between all of the parties that would entitle them to maintain the action if suit were brought by them jointly. The action i^. in effect, brought by all of the parties, as the party named as the plain- tiff stands simply as the representative of himself and all of the others. If the complaint would not authorize all of the parties to join in the action, it follows that the action can not be maintained by him, for them, and the complaint may be tested in the same manner as if all had joined. To this end, that the court may determine the right, not only of the party named to sue for the others, but of the parties them- selves to join in the action, the facts showing their number and their interest in the controversy should be fully and clearly stated in the complaint/ 106. In actions relating to real estate : tenants in com- mon. In actions relating to real estate all parties interested in the relief demanded may be joined as plaintiffs. If the action is to re- cover an entire tract of laud, owned jointly or as tenants in common, all the owners are necessary parties ; but a tenant in common may sue and recover his undivided share of the real estate without joining the other owners, and a tenant in common may sustain an action for pos- session against a co-tenant who denies his right to possession. Where land is owned by tenants in common, they are properly joined in an action for injury to the land ; but any tenant in common may bring his separate action for the injury. It is otherwise where the ownership is joint. There all the owners must join as plaintiffs. 11 Where rent is due to tenants in common, and the rent is entire, they may join. If the amount to be paid to each is' fixed by the leasing they must sue separately.' 107. Actions to recover real estate. In actions to recover real estate the statute provides that " where there are two or more (f) Blair v. Shelby Co. Agricultural Bethal v. McCool, 46 Ind. 303; Ches- Joint Stock Ass'n, 28 Ind. 175; Shoe- round v. Cunningham, 3 Blkf. 82. maker v. The Board of Comm'rs, etc., (h) Pomeroy's Remedies, $ 190. 36 Ind. 175; Tate v. The O. & M. R. (i) Pomeroy's Remedies, 187-219 ; R. Co., 10 Ind. 174. Marshal v. Mosely, 21 N. Y. 280-287; (g) Nelson v. Davis, 35 Ind. 474; Cruger v. McLaury, 41 N. Y. 219 King v. Anderson, 2 Ind. 385. 68 JOINDER OF PARTIES. [CHAP. plaintiffs or defendants, any one or more of the plaintiffs may recover, against one or more of the defendants, the premises or any part thereof, or interest therein, or damages, according to the right of the parties. "* Under this section, no matter whether the proper parties were joined or not, any plaintiff might recover his interest, even though no interest is shown in his co-plaintiffs ; k but this could not be done, even under this liberal statute, where the plaintiff shown to have an interest owns the same jointly with another who is not joined as plaintiff. 1 108. By trustee to foreclose mortgage. In an action by a trustee to foreclose a mortgage, it is not necessary to join the cestui que trust as a plaintiff, but the cestui que trust may be joined. 109. Actions to contest wills. Actions to contest the validity of wills, or to set aside the probate thereof, may be brought by any person interested, and without joining other persons having a common interest; but all persons having a common interest may join as plaintiffs." no. Married women. A married woman must sue jointly with her husband, except : 1. When the action concerns her separate prop- erty the husband may or may not be joined, at her option. 2. When the action is between herself and her husband. In the first of these two classes of actions the husband may be joined as plaintiff. The statute is only intended to be permissive, and not to prohibit the join- der of the husband in the action. p in. Actions for injury to the wife. It was the common- law rule in actions to recover damages for injury to the wife, that the hus- band and wife must join as plaintiffs, and this rule was not changed by the code. q In case of the death of the wife from the injury, the cause of action died with her at common law, and no action could be maintained therefor/ By our statute, however, the cause of action (j) R. S. 1881, 1060. Ind. 418; Gee v. Lewis, 20 Ind. 449; (k) Doe v. Abernathy, 7 Blkf. 442. Wilkins v. Miller, 9 Ind. 100; Flenner (1) Parker r. Small, 58 Ind. 349-353. v. Flenner, 29 Ind. 564; Carver v. (m) R. S. 1881, I 252; Wright v. Carver, 53 Ind. 241. Bundy, 11 Ind. 398. fp) Hollingsworth v. The State, 8 (n) R. S. 1881, H 2596, 2599; Morse Ind. 257; Call v. Byram, 39 Ind. 499. v. Morse, 42 Ind. 365-368; Neiderhaus (q) R. S. 1881, 254. v. Heldt, 27 Ind. 480. (r) Long v. Morrison, 14 Ind. 595, (o) R. S. 1881, 254 ; McCormack v. and authorities cited. Hyatt, 33 Ind. 546 ; Adams v. Sater, 19 V.] JOINDER OF PARTIES. 69 for an injury resuming in death survives to the personal representative where the deceased might have maintained an action had she lived. 8 112. Who must sue for an injury causing the death of the wife. After the enactment of this statute, where the action was for the death of a married woman whose husband survived her, the question was presented, who should bring the action ? It was held that, as the right of the personal representative to sue depended upon the question whether the deceased might have maintained the action had she lived, and as she could only sue by joining her husband, the administrator must sue jointly with the husband, and could not sue alone. 1 In this case the court say : " The right of action may be regarded as continued by the statute in the personal representative, just as it existed m the deceased. Hence, in this case it caused the right of ac- tion to survive to the representative of the wife as one to be prosecuted jointly with the surviving husband. . . . Under this view, the conclusion would be that the action is maintainable, but that it should have been brought in the joint names of the husband and adminis- trator." u 113. Must be some person entitled to damages recovered, or no action can be maintained. It must be observed that it is not in every case that the personal representative can maintain the ac- tion, even where the deceased could have brought the suit if living. It is provided by the statute that " the damages must inure to the ex- clusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased." It has been held that the right to sue in this class of cases is purely statutory, as no such action could have been maintained at common law. The right of action died with the person, and therefore it is necessary to show that the deceased left some person surviving him who would be entitled to. any damages that might be recovered/ It will be noticed that the statute makes no provision for the hus- band in case of the death of the wife. If the husband is entitled to any part of the damages, it must be as " next of kin." (s) R. S. 1881, I 284; Long v. Mor- .!., M. & I. R. R. Co. v. Hendricks, 41 rison, 14 Ind. 595; The Indianapolis, Ind. 48. etc., R. R. Co. v. Keely, 23 Ind. 133; (t) Long v. Morrison, 14 Ind. 595. The Jeffersonville, etc., R. R. Co. v. (u) Id. page 599. Swayne, 26 Ind. 477; The Pittsburgh, (v) The I,, P. & C. R, R. Co. v . etc.,R.R.Co.t>.Vining,27Ind,513;The Keely, 23 Ind. 133; The J., M. & L R. R. Co. v. Hendric-ks, 41 Ind. 48-77. i 70 JOINDER OF PARTIES. [CHAP. As under the construction given the statute by the supreme court, the right of the personal representative to sue depends upon the ques- tion whether there is any person entitled to receive the benefit of the damages recovered, it is important to determine the rights of the husband in case of the death of the wife without children or other kindred, and leaving a husband surviving her. If the husband is the next of kin the suit may be brought, and the damages will inure to his benefit. Strictly speaking, husband and wife are not kindred, w but under our statute of descents they inherit one from the other. z The supreme court has not been called upon to construe the statute in this respect, but the question may arise at any time. When it does it will probably be held that the intention of the legislature was, that if there is any person living who would inherit any part of the personal estate of the deceased, such person would be entitled to the damages recovered, and the administrator would have a right of action. This is evident front the fact that the statute provides that damages recovered shall be distributed in the same manner as personal property of the deceased. When the wife dies intestate, leaving no children, or father or mother, the husband is entitled to the whole of her estate, real and personal. 7 But the supreme court, though not passing upon the precise question now under consideration, has shown an inclination to take a different view of the statute from the one just expressed. If the statute is to be so construed as to entitle such persons to the damages recovered, as would inherit from the deceased, there is no good reason why the right of action for the damages should not be regarded as assets of the estate. It has been held, however, that the right of action for the damages is not assets of the estate of the deceased. 2 In one of the cases cited, it is said : " The statute does not profess to revive the cause of action for the injury to the deceased in favor of his personal representative, nor is such its legal effect, but it creates a new cause of action unknown to the common law. The action given by the statute is for causing the death by a wrongful act or omission, in a case where the deceased might have maintained an action had he lived, for an injury by the same act or omission. " The right of compensation for the bodily injury of the deceased, which died with him, remains extinct. The right of action created (w) 2 Kent's Com. 136, citing 3 (y) R. S. 1881, 2490. Vesey, 246, 247 ; 14 Ibid, 381, 382; 18 (z) The Jeffersonville, etc., 11. K. Ibid, 49, 55, 56. Co. v. Swayne, 26 Ind. 477 ; The ,Jef- (x) Fletcher v. Holmes, 32 Ind. 497; fersonville, etc., R. K. Co. v. Hendricks, R. S. 1881, ?? 2483, 2485. 41 Ind. 48. A'.] JOINDER OF PARTIES. 71 by the statute is founded on a new grievance, namely, causing the death, and is for the injury sustained thereby by the widow and children, or next of kin of the deceased, for the damages must inure to their ex- clusive benefit. They are recovered in the name of the personal repre- sentative of the deceased, but do not become assets of the estate. The relation of the administrator to the fund, when recovered, is not that of the representative of the deceased, but of a trustee for the benefit of the widow and next of kin. The action is for their exclusive benefit, and if no such person existed, it could not be maintained." a If this is taken as a correct statement of the law, and it is the law of this state, this statute must be construed independently of the stat- ute of descents. It is the persons named in the statute who sue, by their trustee, the personal representative. The husband is not one of those named in the statute, therefore he can not sue by a trustee. This is the effect of the decision; but when the direct question, as to the right of the personal representative to sue for the benefit of the hus- band arises, it is believed the right will be extended to him. This right of compensation for the bodily injury to the deceased the supreme court say is not revived by the statute. The cause of action is a new one, for "causing the death," and the right of the trustee to sue depends upon the right of the husband to sue. If he could not sue the personal representative can not sue for him. Following this course of reasoning the supreme court say, for an injury to the person of the wife the husband must join with her, therefore the personal representative must join the husband. b But the later case of theJeffer- sonville, etc., R. R. Co. v. Swayne is not in harmony with this decision in this respect. It is there held that the action for the injury to the wife is not revived, but the action created by the statute is an inde- pendent one for the death of the person. If the action of the personal representative is not for personal injury to the wife, the rule that he must join the husband, because for personal injury to the wife, she, if living, must have joined the husband, leaves the rule with the reason for it taken away. It would be about as reasonable to say : If the person for whom the personal representative sues is an infant the personal representative would have to sue by next friend, because the infant, if living, could only sue in that way. The later case conflicts with the other in another respect. It holds that the clause of the stat- ute, with reference to the " ability of the deceased to maintain the ac- tion if death had ensued, is inserted solely for the purpose of defining the kind and degree of delinquency with which the defendant must be (a) The Jeffersonville. etc., R. R. (b) Long v. Morrison, 14 Ind. 595. Co v. Swayne, 26 Ind. 477. 72 JOINDER OF PARTIES. [CHAP. chargeable in order to subject him to the action." The language is quoted, with approbation, from a New York case. This being true, the question whether the deceased could have sued alone, because of her being a married woman, could have nothing to do with the right of the personal representative to sue, or the manner of bringing the suit. 114. Two causes of action arise in case of injury to wife : when husband may sue. In case of injury to the wife, two causes of action arise one in favor of the husband' alone, for loss of services and expenses; the other in favor of the wife, who must sue jointly with her husband. d In case of the injury of the wife, causing death, where she leaves a husband surviving her, and children or other relatives at common law, the husband has his cause of action for loss of services and expenses. The statute creates a new cause of action which, as I construe it, authorizes the administrator to sue, for the husband's benefit, for dam- ages growing out of the same injury. Does the statute take away the common-law right of the husband to sue, or is it simply cumulative ; thus allowing the husband to sue for himself, and the administrator to sue for him, in separate actions and for the same injury? There is nothing in the statute that indicates an intention to take from the husband his common law right ; but, as we have seen, the statute does not revive the right to sue for the personal injury that, at common law, must have been brought by husband and wife jointly, but creates a new right growing out of the death. 6 The damages re- covered under the statute do not belong to the husband alone, if any part of it does. It might occur that damages in both cases would in- ure to the husband, but this would furnish no reason for holding that the husband's common-law right to sue was taken away by the statute. The right of the husband to recover damages is based upon his loss, while the statutory provision allows a recovery for the death of the wife, and depends upon her right to sue. The damages to be recovered are different, just as they were at common law, and the two actions may still be brought, but not jointly. This proposition is much clearer under the construction given the statute by the early case of Long v. Morrison, that the intention was to continue the common-law right of action to the personal representative, where the injury resulted (c) Whitford v. The Panama R. R. Swinney v. Navo, 22 Ind. 178; Long Co., 23 N. Y.465; Woodford v. Michi- v. Morrison, 14 Ind. 595. gan, etc., R. R. Co., 10 Ohio St. 121. (e) The Jeffersonville, etc., R. R. (d) Rogers v. Smith, 17 Ind. 323; Co. v. Swayne, 20 Ind. 477. V.] JOINDER OF PARTIES. 73 in death. An entirely different construction is given the statute in The Jefferson ville, etc., R. R. Co. v. Swayne, which leaves no guide as to what shall be taken into the account in estimating the damages, ex- cept the statutory limitation of the amount. 115. On notes held by different parties, secured by same mortgage, parties can not join as plaintiffs. Where a mort- gage is to secure different notes, falling due at different times, and the notes have been assigned to and are held by different parties, they can not join in an action to foreclose the mortgage. The notes are the evi- dence of indebtedness, and the debts, when assigned, are entirely sepa- rate and distinct. Where suit is brought by one of the holders of such notes, he may make the holders of the other notes parties defendant, but they have not that unity of interest necessary to make them proper plaintiffs in the same action/ Our supreme court has decided that, where the notes are held by dif- ferent parties and secured by the same mortgage, the mortgage may be treated as several, the same as if a separate mortgage were given to se- cure the payment of each note, and that the holders of such notes are entitled to priority according to the dates when the several notes fall due. 8 WHO MAY BE JOINED AS DEFENDANTS. 116. The statute. "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved." 11 This statute is very broad in its terms. It is not necessary, as it is in the case of plaintiffs, that the party should have an interest in the controversy. If he claims an interest that is adverse to the plaintiff, he is a proper defendant ; the object being to settle the whole contro- versy in one action. It is not necessary that a unity of interest should exist between defendants. The true test is their relation to the plaintiff, whether adverse or not, and not their relation to each other. No matter how diverse their rights or claims of right, if each has or claims an interest adverse to the plaintiff, all may be brought before the court, and will be bound by such judgment as may be rendered, (f ) Pomeroy's Remedies, 340. man, 19 Ind. 30; Sample v. Rome, 24 (g) Murdock v. Ford, 17 Ind. 52; Ind. 208-215; Davis v. Langsdale, 41 Harris v. Harlin, 1 4 Ind. 439; Hough Ind. 399; Zook v. Clemmer, 44 Ind. r. Osborn, 7 Ind. 140; Stanley v. 15-21. Beatty, 4 Ind. 134; The State Bank r. (h) R. S. 1881, g 268. Tweedy, 8 Blkf. 447; Crouse v. Hoi- 74 JOINDER OF PARTIES. [CHAP. provided, only, that the subject-matter of their interest or claims must be the same. 117. Necessary parties must be and proper parties may be joined. It must not be understood that the plaintiff' is bound to make all persons having or claiming an adverse interest in the con- troversy parties defendant in bringing his action, nor is it left wholly within his discretion who shall be joined. The distinction is made between necessary and proper parties defendant. When it is determined whether a party belongs to one or the other of these classes, the ques- tion whether the plaintiff is bound to make him a party or not is answered. If he is a necessary party he must be joined. If a proper party he may be joined or not at the option of the plaintiff. 118. Who are necessary defendants. It becomes important in considering who should be joined as defendants to determine who are necessary parties. This is a question that is not always easily answered, and when the difference between necessary and proper parties is defined, it is sometimes very difficult to determine to which class a given party belongs. Where it is known that the party is a proper one, and the doubt is as to his being a necessary party, the safer practice is to join him as a defendant. A party may be regarded as a necessary party " when a complete determination of the controversy can not be had without his presence." ' But this must be understood to mean the controversy between the plaintiff and defendants. The plaintiff is not bound to join a defend- ant for the purpose of settling a controversy between him and another defendant about the same subject-matter, where he neither has nor claims an interest adverse to the plaintiff. He would not even be a proper party.J Persons who are necessary parties plaintiff, but refuse to join as such, are necessary defendants. k 119. Who are proper defendants. Parties who have or claim an interest in the controversy adverse to the plaintiff, but whose pres- ence is not necessary to a complete determination of the controversy, as between the plaintiff and defendant, and against whom no affirma- (i) R. S. 1881, 272; Luark r. Ma- (j) Frear v. Bryan, 12 Ind. 3-18 ; lone, 34 Ind. 444; Merritt t\ Wells, 18 Conklin v. Bowman, 11 Ind. 254; Ind. 171; Scoby r. Finton, 39 Ind. 275; Scoby v. Finton, 39 Ind. 275, 280; Biltinecr . Bell, 65 Ind. 445, 452. Eesher v. Gilpin, 21) Ind. 08. (k) R. S. 1881, 269 V.] JOINDER OF PARTIES. 75 tive relief is asked or can be granted under the complaint are proper parties. 1 120. In actions on joint contracts. In actions on joint con- tracts, all of the joint promisors or obligors must be made defendants." 1 At common law the rule was carried to the extent that the plaintiff must prove on the trial a joint cause of action against all who were made defendants where they were charged as joiut contractors. If he showed a cause of action against one or more, but not all, he could not recover against any. He was compelled to resort to another action. In this respect the common law is changed by our statute. 121. Several judgments may be recovered against parties jointly sued. "Sec. 570. Though all the defendants have been summoned, judgment may be rendered against any of them severally when the plaintiff would be entitled to judgments against such defend- ants if the action had been against them severally."" The section quoted only authorizes the plaintiff to recover a judgment severally Avhere the plaintiff would be entitled to a judgment against the de- fendant if sued alone. This does not, in terms, authorize a plaintiff to recover a judgment against one of the contractors on a joint con- tract. It is only where he is entitled to a several judgment against the party, and might have sued him alone. We have, however, this further statutory provision: "Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants ; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves." This section would seem to authorize judgments against any defendant, where a right to such judgment is established, whether his liability is shown to be several or joint. In some of the cases decided by our supreme court this statute has been applied to all contracts indiscriminately, whether all of those jointly liable are joined as defendants or not. This is treating the statute as (1) Mack v. Grover, 12 Ind. 254; The State v. Griswold, 40 Ind. 451; Wright v. Field, 7 Ind. 376. Durham v. Bischoff, 47 Ind. 211. (m) Bledsoe v. Irvin, 35 Ind. 293; (n) R. S. 1881, 570; Draper v. "ragg v. Wetzell, 5 Blkf. 95; Dillon??. Vanhorn, 12 Ind. 352; Douglass v. lie State, 6 Blkf. 5; Wilson v. The Howland, 11 Ind. 554; Lockwood v. State, 6 Blkf. 212; Rose v. Comstock, Joab, 27 Ind. 423; Carmen v. Whita- 17 Ind. 1; Stockton v. Stockton, 40 ker, 36 Ind. 509 ; Hubbell v. Woolf, 16 Ind. 225 ; Erwin v. Scottin, 40 Ind. 389 ; Ind. 204. (o) R. S. 1881,568. 76 JOINDER OF PARTIES. [CHAP. one converting joint contracts into those which are joint and several, so far as the plaintiff's right to judgment is concerned, but it has been held in later cases to have no application to actions on joint contracts. The following statute bears directly upon this question: " Where the action is against two or more defendants, and the summons is served on one or more but not all of them, the plaintiff may proceed as follows : First. If the action be against defendants jointly indebted on contract, he may proceed against the defendants served, and if he recover judgment it may be enforced against the joint property of all and the separate property of the defendants served. Second. If the action be against defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only de- fendants, and may afterward proceed against those not served. Third. If all of the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants if the ac- tion had been against them or any of them alone." p This section, it will be noticed, applies to cases where the complaint is against all of the parties who should necessarily be joined, but the plaintiff has been unable to get service upon a part of the defendants. If section 320 was intended to give the plaintiff the right to take judg- ment against defendants, against whom he establishes a cause of action, whether the cause of action is joint or several, there would be very little use of the section last quoted. The plaintiff could take his judg- ment against such persons as were shown to be liable, whether the others were before the court or not. The first subdivision authorizes the plaintiff to take judgment against a defendant in an action on a joint contract, and provides that the judgment may be enforced against the joint property of all the defendants and the separate property of the defendants served. The second sub-.iivision authorizes the plaintiff to proceed as if the defendants served were the only defendants in the action, where the cause of action is several. These two subdivisions show a clear intention to maintain the distinction between joint and several contracts. In actions on joint obligations there can be but one judgment, notwithstanding the provisions of the statute, which seems to apply to all classes of contracts in authorizing separate judgments against the defendants sued, or against those served where all are not served. It has been held by the supreme court that it was not the in- tention of any of these sections of the statute to change the rule that in actions on joint contracts all those bound by the contract must be joined as defendants, and that the only effect of section 320 is that a (p) R. S. 1881, 320. V.] JOINDER OF PARTIES. 77 judgment taken against a defendant who is jointly liable with another, who is sued but not served, will not discharge the latter, who may aft- erwards be brought before the court by summons, and a judgment re- covered against them at a future time. q Section 322 of the code provides that, " When there is a return of ' not found' as to any of the defendants, such return shall be suggested on the record, and the plaintiff may continue the cause as to them for another summons at his option ; and he may, in either case, proceed against the defendant served in time." O This section applies alone to cases where there is a return of " not found " as to a part of the defendants. It has no necessary connection with the preceding section, and is in no way limited to actions on sev- eral contracts. Taken alone, it applies to all classes of actions. But, to give it this broad construction, would make it conflict with section 320, which keeps up the distinction between actions on joint and several contracts. In the case of Erwin v. Scotten, the judges of the supreme court were not unanimous as to the construction that should be given to section 320 (41 of old code), but the majority of the court held that it had no application to actions on joint contracts. It may be regarded, therefore, as the settled law of this state that but one judgment can be taken on a joint obligation, and a judgment against one joint con- tractor is a discharge of the others, except that under sections 320 and 321 a judgment may be taken against the defendant served, and the defendants not served may afterward be brought in and judgment taken against them ; but their liability must still be regarded as joint, and the payment of one judgment will satisfy the other. When it is said that a judgment taken against one of the joint contractors will dis- charge the others, it must not be understood that the plaintiff has the right to take such a judgment when the proper defense is made. The party sued may waive any objection to such judgment being taken by failing to make the proper defense ; but, when he makes the defense that he is sued alone on a joint contract, the defense will be successful. Where the party first sued permits judgment to go against him, the other party may plead the judgment as a bar to any further prosecu- tion of the case as against him. r In the case of Erwin v. Scotten, in the dissenting opinion of Downey, J., a liberal construction for section 42 of the code of 1852 was very forcibly contended for. While it is believed that, if this section stood alone, the construction claimed for it in the opinion should be given it, (q) Erwin v. Scotten, 40 Ind. 389; (r) Post, 605. 11. S. 1881, 321. 78 JOINDER OF PARTIES. [CHAP. it would be impossible to reconcile section 322, thus construed, with the one immediately preceding it. The learned judge, in his opinion, says : " It is held that section 42 applies only to cases where the action is upon a several liability. But this is, in my opinion, mere assertion against a plain enactment of the legislature. If a separate judgment can not be rendered against the defendants who are brought in at a subsequent term, it is very clear, it seems to me, that the court can so render the judgment as to make these defendants jointly liable with those against whom judgment was previously rendered. The rule that a judgment against a part of several joint debtors merges the cause of action and shields the others from any liability to another action, is a snare in which unwary creditors are often caught, and should at once be abrogated by the legislature. It has been changed in several of the states, and the more sensible and just rule established, that all or any of the parties may be sued, and judgment recovered against them, without affecting the right of the creditor to sue the others until he has got judgments against all of them or secured payment of the debt. Section 42 was a step in the right direction, but this decision, if fol- lowed, deprives it of much of the good which it was intended to ac- complish." 8 The views, thus expressed in the dissenting opinion, are given, not because they state the law of this state, but for the purpose of calling attention to the reasoning by which the judges reached their different conclusions. If the same liberal construction could be given to the whole code, that is claimed in the dissenting opinion for this one sec- tion, it would be better calculated to carry into effect the legislative intent; but, while, under the general sections of the code, the rigid rule that is applied to actions on joint contracts at common law is maintained, there is no reason why, as to this particular section, the construction should have been different, thereby breaking the almost uniform line of decisions holding that the statute has made no change in the common-law requirement, that in actions on joint contracts all the promisors must be joined in the same action, and but one judg- ment can be rendered. 1 (s) Hunt v. Anderson, 4 Ind. 108; laningham, 7 Ind. 540; Archer v. Hei- Irwin v. .Scotten, 40 Ind. 389-401 ; Pat- man, 21 Ind. 29 ; Maiden v. Webster, terson v. Norris, 29 Ind. 165; R. S. 30 Ind. 317; Irwm v. Huldenburg, 21 1843, ch. 40, 31. Ind. 106 ; The States. Roberts, 40 Ind. (t) Gibbons v. Surber, 4 Blkf. 155; 451; Robertson v. Smith, 9 Am. Dec. Morris v. Knight, 1 Blkf. 106; Palmer 227 (18 Johnson, 459). v. Crosby, 1 Blkf. 139 ; Cahill K. Van- ' V.] JOINDER OF PARTIES. 79 The amendment of section 641 of the old code authorizes a separate judgment to be afterwards taken against parties not served ; but the intention to maintain the rule as to the joint liability of the parties is manifest, as the complaint, to entitle the party to the second judgment, must allege the facts authorizing the judgment, and, in effect, the two judgments must be regarded as but one. u 122. Only parties liable in the same right should be joined. The rule that parties jointly liable must be joined as de- fendants only applies to parties liable in the same right. It has been held, that where a joint note has been assigned by a joint contract of indorsement, the joint makers may be sued in one action and the in- dorsers in another, and the two need not be joined. This is upon the ground that the makers and indorsers, although liable for the same debt, and to the same person, are liable on a different contract, and the liability is not the same. v 123. In actions on notes and bills. It is provided by the Statute that, " persons severally and immediately liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same ac- tion at the option of the plaintiff."" This section simply authorizes the plaintiff, at his option, to join persons severally and immediately liable upon the same obligation in one action. It does not compel the joinder of such parties. 3 The statute is not remarkable for its clearness, and the decisions under it, with one exception, are much the same. It is undoubtedly intended to confer upon a plaintiff the right to join as defendants parties who could not be joined at common law. It must be conceded that it does not authorize him to sue a part of those liable on a joint contract. It is expressly confined to persons severally liable. It author- izes the joinder of such parties only when they are " immediately liable on the same obligation." It has not the effect, then, to authorize persons severally liable to be sued in all cases. At common law, where the contract was joint and several, the plaintiff must elect, when he brought his suit, whether he would treat the contract sued upon as several or joint. If joint, then all the parties to it must be joined as defendants. If several, only one could be sued. There was no such thing as suing a part, but more than one. And this election was held (u) R. S. 1881, g 321. (x) Hall v. Suitt, 39 Ind. 316; State (v) Archer v. Heiman, 21 Ind. 29. r. Roberts, 40 Ind. 451; Norvell r. Hit- (w) R. S. 1881, 270. tie, 23 Ind. 346. 80 JOINDER OF PARTIES. [CHAP. binding upon the plaintiff to the end. If he failed to prove a joint lia- bility when he had elected to treat the contract as such, he must fail iii the action, and the same result followed where he elected to treat the contract as several, and it turned out upon the trial to be joint. 7 I have already shown that the law has been changed in this respect by the code. 2 The plaintiff may treat the contract as joint in his com- plaint, but if upon the trial it is shown to be several, he is entitled to judgment against those shown to be severally liable. The reverse of this is not true. The construction given the different sections of the code does not authorize the plaintiff to recover where he has, in his complaint, treated the contract as several and it turns out to be joint. The manifest reason for this is, that the parties against whom judg- ment should be rendered, are riot all before the court. In the other case, where the contract proves to be several, all of the parties are before the court. The defendants liable are not injured by the misjoinder of the other defendants, and the joinder of their names may be considered mere surplusage. 124. Executor or administrator of joint contractor can not be joined with survivor. The question has been considered by the supreme court whether the administrator <-r executor of a joint contractor may be joined with the survivor in an action on the contract. This could not be done at common law. The surviving joint con- tractor was alone liable and must be sued alone. Not only did the rule prevent the personal representative from being joined, but the death of the party released his estate from all liability on the contract, at law, though the estate might be held liable in equity. 8 It was held under the code of 1852, that the personal representative of a deceased joint contractor might be joined in the same action with the survivor in an action on the contract. 15 This was not claimed to have beeu effected by section 270 of the code, but by section 268. The question has been considered, however, whether the former section authorizes the joinder of the personal rep- resentative of a deceased contractor in the same action with the sur- vivor, where the contract is several or joint and several. In the case of Braxton v. The State the contract was not joint, but the court, fol- lowing the old rule in case of joint and several contracts, held that, as the contract was joint and several, and the plaintiff had elected to treat (y) Braxton . The State, 25 Ind. 82. v. Halstead, 16 Ind. 287; Weyer v. (z) Ante, 121. Thornburg, 15 Ind. 124; Kimball v. (a) Braxton v. The State, 25 Ind. 82 ; Whitney, 15 Ind. 280. Brown v. Benight, 3 Blkf. 39; Deval (b) Braxton v. The State, 25 Ind. 82. V.] JOINDER OF PARTIES. 81 it as joint, it must be so considered, and the action was properly brought against the survivors and the executors of the deceased contractor. So far as the case holds that an executor's bond might be treated as the joint bond of both of the executors and that of the sureties of both jointly, it has been expressly overruled by a later case. This latter suit was brought on the relation of an administratrix against her co-administrator and the sureties upon a bond which was given by the relatrix and the defendants. It was insisted that, as the relatrix was herself a principal in the bond with her co-administrator, and the other defendants were the sureties of both, she could not main- tain the action. And, further, that she was a necessary party defend- ant. It was held that, under the statute relating to the settlement of decedents' estates, each of the administrators were required to give separate bonds, and that when they joined in the same bond it must be construed- as the separate bond of each, and the sureties must be re- garded as the sureties of each of the executors or administrators, just as if two bonds had been given, one by each, with the same sureties. And, therefore, the defendants were properly joined, and the relatrix was the proper party. The right to join an administrator or executor of one contractor with the survivor, where the action is on a several contract, has been recog- nized in this state. d And, in a proper case, where they would be liable to an action, the heirs of a surety on the bond of a guardian, executor or administrator, might be joined in an action on the bond. 6 This question has been set at rest by the code of 1881, which provides : " Sec. 624. When two or more persons shall be jointly liable on a contract or judgment, and either of them shall die, his estate, execu- tors and administrators, shall be liable for the failure to perform the contract and for the payment of the judgment to the same extent and in the same manner as if such contract or judgment were joint and several." f It was held, prior to this statute, that the estate of a surety was not discharged from liability by his death, as at common law, and that his estate was liable the same as if the contract was joint and several. This was placed upon the ground that the statute of 1838, which was similar to section 624 of the present code, was still in force. 3 While the code provides that, upon the death of a party jointly in- (c) The State v. Wyant, 67 Ind. 25. (e) Voris v. The State, 47 Ind. 34-3. (d) Owen v. The State, 25 Ind. 107; (f ) R. S. 1881, 624. Beacher v. The State. 63 Ind. 302; (g) Hudelson v. Armstrong, 70 Ind. Eaton v. Burns, 31 Ind. 390. 99. 6 82 JOINDER OF PARTIES. [CHAP. debted, his estate, executors and administrators, shall be liable as if the contract were joint and several, the decedents' act provides expressly that the administrator can not be proceeded against by complaint. The only remedy against the estate is by filing a claim. h And the su- preme court has held that no other party can be joined as defendant with an administrator or executor where the cause of action is filed as a claim against the estate.' Therefore there can be no joinder of an executor or administrator with the surviving joint contractor. 125. Official bonds, and bonds of executors, adminis- trators, and guardians, may be treated as joint or several. Official bonds, or bonds of executors, guardians, or administrators, may be treated either as joint or several, but where the suit is brought as upon a joint contract the plaintiff is not bound by the election to treat the obligation as joint. He may, at the time of the rendition of judgment, demand such judgment as the evidence warrants, whether it be joint, as alleged in his complaint, or several. He may, there- fore, recover judgment against one of the defendants at one term and continue as to the others, and take judgment as to them at a later term. And, as they are all severally and immediately liable, he may sue one or more or all of them at his option. This may be done un- der section 270, whether the action is joint or joint and several. If it is joint and several he may treat it as several and sue a part. When the plaintiff sees proper to treat the contract as several, it be- comes such for all the purposes of that case, and is governed by the same rules as if it had been made so by the express terms of the con- tractJ 126. All or any of the parties severally, or jointly and severally liable, may be sued, at the plaintiff's option. In the case of the State v. Roberts, the court say : " The rule of law that a judgment against one or more joint debtors is a bar to a subsequent action against the others, is well settled, and has been repeatedly ap- plied by this court. It proceeds upon the ground that there can be but one judgment on such a cause of action, unless otherwise provided by statute, and that the judgment against a part of the joint debtors merges the cause of action. This rule relates exclusively to joint con- tracts or contracts where the parties are jointly liable. When the contract is both joint and several, different rules apply. In such cases, (h) ft. S. 1881, $2311, 2312. (j) The State v. "Roberts. 40 Ind. (i) Niblack w.Goodman, 67 Ind. 174. 451; Porneroy's Remedies, \ 408;. Maiden v. Webster, 30 Ind. 317. V.] JOINDER OF PARTIES. 83 the rule of common law, and in this state prior to the code, was, that the party suing on such a contract must treat it as several, and sue the parties liable thereon severally, or treat it as joint, and sue them all ; but he could not sue an intermediate number. No change has been made in this respect where the contract is joint only, but as to con- tracts which are several, or joint and several, an important change has been made by the code. It is provided by section 20, 2 G. & H. 50, that, ' persons severally and immediately liable on the same obligation or instrument, including parties to bills of exchange and promissory notes, may all or any of them be included in the same action, at the option of the plaintiff.' The instrument sued upon in this case is clearly within the terms of this section, and the persons liable thereon are severally and immediately liable. It is true that they are jointly liable, but they are also severally liable. If there had been no joint liability, the parties to it, under this section, might very clearly all have been sued upon it in the same action. That there is a joint lia- bility, as well as a several, can make no difference." The court, after considering authorities from other states under the same and similar statutory provisions, continues : "Applying the statutes and authorities in question,, we come to these conclusions in the case under consideration : first, that the plaint- iff had the right to sue all of the defendants upon the obligation or in- strument in question, whether it is viewed as a joint, or as a several obligation ; second, that the bringing of the action against all of them does not show an election to treat the cause of action as joint or as sev- eral ; third, that, in such a case, the court may, if the plaintiff elect at the time of the rendition of judgment to treat the instrument as several, render separate judgments against the defendants liable, or, if the plaintiff, on the contrary, then elect to treat it as .joint, and the defendants are shown to be jointly liable, render a joint judgment against all ^f them ; fourth, that, in either case, the plaintiff can have but one satisfaction ; fifth, that the rendition of the judgment in this case against the principal alone did not merge the several liabilities of the securities." 8 Mr. Estee, in his work on pleading and forms, says : " In New York, it seems the plaintiff may sue one or all of the obligors of a joint and (s) The State v. Roberts, 40 Ind. 451, Barb. 33 ; The People t\ Love, 25 Cal. citing Burgoyne v. Ohio Life Ins. Co., 520; 1 Estee's Pleadings and .Forms, 5 Ohio St. 586; Morehouse i\ Ballon, 116, 117, 118. 16 Barb. 289; Parker v. Jackson, 16 84 JOIXDER OF PARTIES. [CHAP. several bond ; but, in strictness of law, he can not sue an intermediate number." * " The practice is, however, different in California, where one or all, or any intermediate number may be made defendants at the option of the plaintiff." u It will be noticed that by the case of The State v. Roberts, cited above, the California practice has been adopted in Indiana. The section of the statute, that is the same in this and other states, very clearly authorizes the plaintiff to sue any number of the parties to the contract that he may see proper. It is not necessary that the parties to the contract should be bound in the same amount, or that the recovery against each should be the same. They may be joined where the judgment to be recovered against each is for a different amount. In such case a separate judgment should be rendered against each defendant, as required by the evidence. The requirement of the statute is that they shall be liable on the same in- strument, not that their liability shall be the same, but only that they be immediately liable to the plaintiff/ 127. Principal and surety may be joined, but principal and guarantor can not. The statute very clearly applies to persons liable on a contract as principal and surety, but whether it ap- plies to guarantors is not so clear. The contract of the surety is that of the principal, but in this state the contract of the guarantor is held to be a separate and distinct contract. w And while it is true that the liability of the guarantor is measured by that of his principal, he is not usually bound " immediately by the same instrument." If his guaranty is a part of the same instrument that binds the principal, there is no good reason why the statute should not be held to authorize his joinder in an action on the contract. But if his guaranty is in fact a separate contract contained in a separate instrument, the case is not within the terms of the statute. It has been held in Indiana that the original contractor and the guarantor are not properly joined in the same action. 1 (t) Citing Leroy v. Shaw, 2 Duer, 400; People v. Love, 25 Cal. 520 ; East- 626; Minor v. Mechanics' Bk. of Al- man v. Turinan, 24 Cal. 379. exandria, 1 Pet. S. Ct. 46; Annis v. (v) Pomeroy's Kemedies. % 406, 407. Smith, 16 Id. 303; Brainard v. Jones, (w) McMillan v. The Bull's Head 11 How. Pr. 569; Loomis v. Brown, 16 Bank, 32 Ind. 11. Barb. 325; Phalen v. Dingee, 4 E. D. (x) Virden v. Ellsworth, 15 Ind. Smith, 379; Allen v. Fosgate, 11 How. 144; Smith r. Bainbridge, 6 Blkf. 12; Pr. 218. Gaff r. Sims, 45 Ind. 265; Richwine v. (u) Citing Lewis v. Clarkin, 18 Cal. Scoville, 54 Ind. 150; Coler. The Mer- chants' Bank, 60 Ind. 350. V.] JOINDER OF PARTIEg. 85 Mr. Pomeroy, in his work on Remedies and Remedial Rights, lays down the rule that "a surety or guarantor may be joined as a co- defendant with his principal, if the contract be in such a form and of such a nature that his liability arises from the same instrument." y It is admitted, however, by the learned author, that the weight of au- thority is against the right to join the guarantor and his principal. The fact that the original promise and the guaranty are written on the same piece of paper, does not make them one instrument. One of the tests by which to determine whether a party is a surety or a guarantor, is the question whether his promise is collateral to or the same as that of the principal. If his promise is collateral, this is one evidence of his being a guarantor, and being collateral, he can not be regarded as being bound by the same obligation or instrument. " There are important differences between the contract of suretyship and that of guaranty. A surety is bound, with his principal, as an original promisor, and is a debtor from the beginning. The contract of a guarantor, on the other hand, is his own separate contract. It is in the nature of a warranty, by him, that the thing guaranteed to be done by the principal shall be done, and not merely an engagement, jointly with the principal, to do the thing." 2 The case of Carman v. Plass, cited by Mr. Pomeroy, was an action on a lease for rent; and the party charged as a guarantor had, in the lease sued upon, guaranteed the payment of the rent. It was held that as the parties were both bound by the same instrument they were properly joined, and the fact that their liabilities were not precisely the same could make no difference. But the contrary doctrine is laid down as the law in this state in a case in legal effect the same, the only difference being that the guaranty is indorsed on the lease. But it was alleged that the lease and indorsement were executed at the same time and upon the same consideration. The court say : " We are of opinion that the parties were improperly joined. The undertaking or contract of the guarantor was distinct from that of the principal and collateral thereto ; and his liability depended upon a contingency : namely, the non-payment of rent by the lessee." a 128. "When indorser may be joined with maker of prom- issory note or drawer of bill of exchange. The contract of an (y) Pomeroy's Kemedies, 410> citing Ind. 11; Drake v. Markle, 21 Ind. Carman v. Plass. 23 N. Y. 286, 287. 433. (z) Gaff v. Sims, 45 Ind. 262, 264; (a) Virden v. Ellsworth, 15 Ind. 144, Virden v. Ellsworth, 15 Ind. 144; Me- citing Nelson v. Boynton, 3 Met. 396; Millan v. The Bull's Head Bank, 32 Skelton v. Brewster, 8 Johns. f,78. 86 JOINDER OF PARTIES. [CHAP. indorser of a promissory note or bill of exchange, like that of a guar- antor, is distinct from that of the maker or drawer. They are only conditionally liable, depending upon whether the maker or drawer does or does not pay the debt. Applying the rule laid down in case of guarantors, the maker of a note, or the drawer of a bill of exchange, and the indorsers could not be joined in the same action. They are not bound by the same instrument nor is their liability the same. But we have a statute in this state that expressly provides that the " holder of any note or bill of exchange, negotiable by the law merchant or by the law of this state, may institute one suit against the whole or any number of the parties liable to such holder." This statute ap- plies to " notes or bills of exchange negotiable by the law merchant or by the law of this state." Promissory notes, governed by the law merchant, are such as are made "payable to order or bearer in a bank in this state." d As to such notes and bills of exchange, it is well established that fhe makers or drawers and the indorsers may be joined in the same action or not, at the option of the holder. 6 129. On promissory notes negotiable by the law of this state. Promissory notes, negotiable " by the law of this state" are defined by the following section of the statute : "SEC. 5501. All promissory notes, bills of exchange, bonds, or other instruments in writing, signed by any person who promises to pay money, or acknowledges money to be due, or for the delivery of a specific article, or to convey property, or perform any stipulation therein mentioned, shall be negotiable by indorsement thereon, so as to vest the property thereof in each indorsee successively." f Section 5516 of the act quoted from above, authorizes the holder of a promissory note, made negotiable by this statute, to sue the makers and indorsers in the same action, or any of them alone, just as clearly as it does the holder of a note "negotiable by the law r merchant." There is, however, another section of the same act that is in conflict with this section so far as it applies to notes negotiable by the law of (c) R. S. 1881, 5516. gomery, 19 Ind. 110 ; Hunt v. Standart, (d) K.S. 1881, 5506; Porter v. Hoi- 15 Ind. 33; Roach v. Hill, 54 Ind. 245. loway, 43 Ind. 35; Parkinsons. Finch, Walker v. Woolen, 54 Ind. 164. 45 Ind. 122; Mix v. The State Bank, (e) Hall v. Suitt, 39 Ind. 316; Mar- 13 Ind. 521 ; Stoneman v. Pyle, 35 Ind. shall v. Pyeatt, 13 Ind. 255; Reiser v. 103; Hereth v. Merchants' Nat. Bank, Yandes, 45 Ind. 174. etc., 34 Ind. 380; Mussulman v. McEl- (f ) E. S. 1881, \ 5501. henny, 23 Ind. 4; Gordon v. Mont- , V.] JOINDER OF PARTIES. 87 this state. "Any such assignee, Jiaving used due diligence in the premises, shall have his action against his immediate or any remote indorser." " This section withholds the right of the holder to sue until he has used due diligence in the premises. The supreme court holds that to use due diligence is to sue the maker. h It follows that, in this class of cases, the maker and indorsers can not be joined in the same action, for the reason that the statute re- quires that the maker shall be sued alone before a right of action ac- crues against the iudorser. It is not in all cases, however, that the holder is bound to sue the maker. If he is totally insolvent the holder is not bound to sue him, but may sue the indorser at once. 1 The same rule applies where the maker has become a non-resident of the state at the time suit should be brought against him.J Section 5516 clearly authorizes the holder to sue all or any of the iudorsers of notes not governed by the law merchant as this right is in no way limited or affected by section 5504 where the liability of the indorsers has been fixed by using due diligence to collect from the maker, or where sufficient excuse is shown for a failure to use such diligence. 11 In the case of Couch v. The First National Bank, the maker and indorsers of a note not governed by the law merchant were joined in the action, but the action against the maker was dismissed in the court be- low. It was held that they could not be joined in the same action ; but, as the complaint alleged the insolvency of the maker, the plaint- iff had the right to dismiss as to him and proceed to judgment against the indorsers. The court say: " It would seem that makers and indorsers could not be joined in an action, except in cases where the indorsers are liable without a suit having been first brought against the makers." It may be inferred from this language that there might be a case where a joinder of the makers and indorsers would be proper, but, as there was no such question before the court, what seemed to be the law is of very little weight. There is no authority, in this state, authoriz- (g) R. S. 1881, ?5504. (i) Markle v. Evans, 47 Ind. 326; (h) Roberts v. Masters, 40 Ind. 461 ; Pennington v. Hamilton, 50 Ind. 397, Hall v. The Junction R. R. Co., 15 Ind. Kestner . Spath, 53 Ind. 288. 362; Hunt v. Standart, 15 Ind. 33; (j) Halton v. McCorraick, 45 Ind. Pennington v. Hamilton, 50 Ind. 397; 411 ; Bernitz v. Stratford, 22 Ind. 320. Markell 'v. Evans, 47 Ind. 326; Miller (k) Marshall v. Pyeatt, 13 Ind. 255; v. Draner, 30 Ind. 371 ; Bernitz v. Staf- Couch v. The First Nat. Bank, etc., 64 ford, 2'2 Ind. 320. Ind. 92; Mix v. The State Bank, 13 Ind. 521. 88 JOINDER OP PARTIES. [CHAP. ing such joinder, while, as we have seen, there are many authorities the other way. 130. When individual members may be sued for debts of corporation. The individual members of a corporation are some- times made liable for its debts, and may be sued therefor. 1 Thus, under a statute of this state providing for the incorporation of ditching associations, it was provided that all the members of such companies should be " individually liable for all the debts contracted by the company, or the damages assessed against any company of which he may at the time be a member." It was held that this statute made the individual members primarily liable for the debts of the company, for which they might be sued without having first sued the corporation." In an action under this statute in a later case, the corporation and its individual members were joined in the same action. The members of the corporation answered that the corporation was the owner of property, out of which the debt could be made, and insisted that they were secondarily liable. The court held, as in the former case, that they were primarily liable, and were properly sued, the question whether there were assets of the company being immaterial. The question whether the company and the individual members were properly joined in the same action was not decided. The judgment rendered, provided that the assets of the company should be first ex- hausted, and the court said the members of the company had no reason to complain of the joinder of the company, and no demurrer was filed by the corporation. Under a similar statute it was again held that the individual mem- bers were primarily liable, that their liability was joint and not several, and that all of the members must be joined as defendants. It was further held, that the members, after being compelled to pay the debt, would be entitled to re-im burse ment out of the assessments of the company when collected. 1 " Where the individual stockholders are made liable for the debts of the corporation, to the extent of the stock subscribed by each, their (1) R. S. 1881, $ 3586, 3869, 3934, (p) Shafer v. Moriarty, 46 Ind. 9, 3964, 4161, 4172, 4192. citing 3 Ind. Stat. 227 ; Allen v. Sew- (m) 1 G. & H. 305. all, 2 Wend. 327; Middletown Bank (n) Toddhunter v. Randall, 29 Ind. v. Magill, 5 Conn. 28; The Bank of 275. Poughkeepsie K. Ibbotson, 24 Wend. (o) The Marion, etc., Co. v. Norris, 472; Garrison v. Homp, 17 N. Y. 458; 37 Ind. 424. Moss v. Oakley, 2 Hill (N. Y.), 265. See Shafer v. Cravens, 46 Ind. 171. V.] JOINDER OF PARTIES. 89 liability is several, and each may be sued alone. 1 But under our statute, as their liability grows out of the same instrument, they might be joined as defendants/ 131. In actions by assignee without indorsement, as- signor must be joined. " Sec. 276. When any action is brought by the assignee of a claim arising out of contract, and not assigned by indorsement in writing, the assignor shall be made a defendant, to answer as to the assignment or his interest in the subject of the action." 8 This statute is imperative, and makes the assignor a necessary defend- ant where the assignment is not made by " indorsement in uniting."* The word indorsement means " a writing on the back," and an "as- signment in writing" is not equivalent to an " assignment by indorse- ment in writing." In order to excuse the necessity of joining the assignor as a party defendant, the assignment must be in writing on the back of the instrument. A separate written assignment is not suffi- cient. u Where the assignor in such case is deceased at the time of bringing the suit, his personal "representative must be joined as a defendant, or the complaint must show that none has been appointed. 7 NECESSARY DEFENDANTS IN ACTIONS FOR SPECIFIC PER- FORMANCE OF CONTRACTS TO CONVEY REAL ESTATE. 132. By vendee. In an action by the vendee for specific perform- ance of a contract to convey real estate where the vendor is dead, his widow and heirs should be made defendants. The personal represen- tative is not a necessary party. w Heirs who have conveyed their interest need not be joined. x 133. By vendor. In actions by the vendor to enforce a specific (q) Middletown Bank v. Magill, 5 24; Reed v. Garr, 59 Ind. 299 ; Eeed v. Conn. 28; Perry v. Turner, 55 Mo. Finton, 63 Ind. 288. 418; K. S. 1881, 4192. (u) Reed v. Garr, 59 Ind. 299; Reed (r) R. S. 1881, 270; ante, 123. v. Finton, 63 Ind. 289; The Marion, (s) R. S. 1881, ? 276. etc., G. R. Co. v. Kessinger, 66 Ind. (t) The Indiana, etc., R. R. Co. v. 549. McKernan, 24 Ind. 62; Barcu-s v. (v) St. John v. Harwick, 11 Ind. 251. Evans, 14 Ind. 381; Mevvherter v. (w) Watson v. Mahan, 20 Ind. 223; Price, 11 Ind. 199; Shane v. Lowry, Barnard v. Macy, 11 Ind. 536; Long 48 Ind. 205; Nelson i>. Johnson, 18 r. Brown, 66 Ind. 160; Sowle v. Hold- Ind. 329-333; Strong . Downing, 34 ridge, 63 Ind. 213. Ind. 300; dough v. Thomas, 53 Ind. (x) Barnard v. Macy, 11 Ind. 536. 90 JOINDER OF PARTIES. [CHAP. performance of the contract and recover the purchase-money, both the personal representatives of the deceased vendee and his heirs should be made defendants. The deed must be tendered to the heirs, but the recovery of the purchase-money could only be had against the personal representative. 134. Where vendor is dead. The statute provides that, " when- ever any person who has executed a title bond or contract for the con- veyance of real estate to any person or corporation shall die before such conveyance is executed, and shall have made no legal provision, by will or otherwise, for the execution of such conveyance, and the whole or any part of tlie purcJiase-money be unpaid at his death, the executor or administrator of such deceased person may file a petition in the circuit court of the county where the real estate or any part thereof lies, or where letters testamentary or of administration are granted against the obligee, vendee, or assignee, or all of them, as may be necessary, and also the heirs and devisees, if any, of the deceased, praying in such petition for the appointment of a commissioner to execute a convey- ance to the proper holder of such bond or contract. "* The statute further provides for the trial of the question presented by the petition, and the appointment of a commissioner to execute tlie deed ; authorizes the executor or administrator to tender such deed to the holder of the title bond or contract and demand payment of the purchase-money, and that, upon the failure of the person liable to pay the money, the administrator or executor is authorized to bring suit therefor. y The object of these provisions is to place the executor or adminis- trator in the proper condition to sue by providing the means by which to procure the execution of a deed which may be tendered to the vendee, which must be done before suit can be brought for the final payment of the purchase-money. Two separate proceedings are necessary. The first is to procure the execution of the deed by a commissioner. To this action the heirs of the vendor are necessary parties defendant, be- cause the title to the real estate is in them, and the vendee or holder of the contract to convey the real estate is also a necessary defendant. In the action for the purchase-money, after tendering the deed, the heirs of the vendor are not necessary parties. We have seen that contracts to convey real estate may be assigned, and if the assignment is made by " indorsement in writing," the assignor is not a necessarv party where the assignee has assumed to pay tlie purchase-money ; but the administrator or executor, in such case, may make both the vendee (x) R. S. 1881, ? 2374. (y) R. S. 1881, g 2375, 237C,. 2377. V.] JOINDER OF PARTIES. 91 and his assignee defendants. Where the contract to convey has been assigned more than once, the intermediate indorsers are not neces- sary parties where the assignments have all been by written indorse- ments. 2 Where the assignee has assumed and agreed to pay the purchase- money, the administrator may look to him alone for payment, 3 but he is not bound to do so, and, if he seeks to hold the original vendee lia- ble for the purchase -money, he, as well as the assignee, is a necessary defendant. IN FORECLOSURE OF MORTGAGES. 135. Necessary and proper parties. In actions to foreclose mortgages, the difference between necessary and proper defendants is very strongly exemplified. While the number of necessary parties is comparatively small, those who are proper parties and may be joined in the action are very numerous. The importance of a clear under- standing as to who are proper parties in this class of cases is apparent, under the many decisions of our supreme court, holding that, unless such persons are joined in the action, they are not bound by any judg- ment that may be rendered, and their rights are not affected by the proceeding. 11 136. Where several notes, secured by same mortgage, are held by different parties. Where a mortgage is given to se- cure several notes, and such notes are held by different persons, either may sue on the note held by him, and foreclose the mortgage, without making the holders of the other notes parties to the action; but, al- though they are not necessary, they are proper defendants, and may be joined. The mortgage is held to be several as to the parties hold- ing the notes, and is construed as so many successive mortgages, held by the note-holders in the order in which their notes mature. There is, therefore, no difference between a case where several debts are se- cured by the same mortgage and one where there are debts secured by different mortgages, so far as the question of parties is concerned. In actions to foreclose, all persons having an interest in the real estate, either as owners or lien-holders, whether by virtue of their being mort- (z) Ante, 131. v. Mopley, 46 Ind. 355; Holmes v. (a) Post, \ 142, and cases cited; Ar- Bybee, 34 Ind. 262; McKernan v. thur v. Franklin, 15 Ohio St. 485, 509. Neff, 43 Ind. 503; Pauley v. Cauthorn, (b) Murdook v. Ford, 17 Ind. 52; 101 Ind. 91; Petry v. Ambrosher, 100 Shaw v. Hoadley, 8 Blkf. 165; Goodall Ind. 510. 92 JOINDER OF PARTIES. [CHAP. gagees or otherwise, are proper parties. If such parties are owners of the real estate, or any part of it, they are necessary parties. 137. When wife necessary party in foreclosure against husband ; where wife does not join in mortgage. It has been held that, where the husband purchased real estate, and, at the time, executed a mortgage for the purchase -money, in which the wife did not join, the wife was not a necessary party defendant in an action to foreclose the mortgage during the life of the husband, and that the wife had no right to redeem from a sale made under the foreclosure proceeding. 11 The decision was rendered by a divided court, and the question was fully and ably discussed. The majority of the court, in holding that she was not a necessary party, based the opinion upon their construc- tion of the law of descents that the widow, under the statute, took as an heir, and not by virtue of her marital rights; and that, as the statute provided that " where a husband shall purchase lands during marriage, and shall, at the time of the purchase, mortgage said lands to secure the whole or part of the consideration therefor, his widow, though she may not have united in said mortgage, shall not be entitled to her third of such lands as against the mortgagee or persons claiming under him ; but she shall be entitled to the same as against all other persons," the wife had no interest in the land, and not being the owner of any part of the land, or any interest therein, she was not a neces- sary party to the action to foreclose the mortgage, and had no right to redeem. After quoting authorities to the effect that the widow takes the es- tate conferred on her by statute as an heir and by descent from her husband, the court say : "It seems clear, therefore, that the right of the widow under the statute to a third of the lands of her deceased husband is not as dowress, but it vests in her at his death as an heir by descent. " f If the court is right in this position, it must follow that the wife had no present interest in the land, and was not, therefore, a necessary party. This question came again before the supreme court in a later case, (c) Day v. Patterson, 18 Ind. 114; Murray v. Mounts, 19 Ind. 364; State Muir v. Gibson, 8 Ind. 187; Pomeroy's v. Mason, 21 Ind. 171; McMakin v. Remedies, \\ 334, 336; Jones on Mort- Me Michaels, 23 Ind. 4(52; Rockhill v. gages, 1394 ; post, 141. Nelson, 24 Ind. 422 ; Easing v. Rusing, (d) Fletcher v. Holmes, 32 Ind. 497. 25 Ind. 63. (e) Frantz r. Harron, 13 Ind. 507; (f ) Fletcher v. Holmes, 32 Ind. 510. Johnson v. Laybrook, 16 Ind. 473; > V.] JOINDER OF PARTIES. 93 where it was held that if the husband died seized of the real estate, the wife took her interest as heir, by descent, but if the real estate had been conveyed by the husband by deed, in which the wife did not join, she would take one-third of the real estate by virtue of her marital rights, and not as heir, and that in the former case she would be a necessary party, but in the latter she Avould not. 8 In the very able opinion delivered in this case, after quoting sections 17, 27, and 31 of the statute of descents, 11 Worden, J., said : " Now the facts alleged give rise to two questions : first, would Mrs. May have had the right to redeem had there been no foreclosure? Second, if so, is she barred by the foreclosure, she not having been a party to the proceedings ? The solution of these questions depends upon another, viz., in what capacity does a surviving wife take the interest conferred upon her in the lands of which her husband was seized during coverture, but of which he did not die seized ? If she takes in such case by descent, and simply as the heir of her hus- band, there must be an end of the question, for a judgment against the ancestor binds the heir. Moreover, if she takes simply as heir, the husband having been disseized in his life time, no estate descended to the widow, and consequently she has no interest to redeem from the mortgage. There can be no doubt that, under sections 17, 23, and 25 of the statute of descents, the surviving wife takes the interest thereby conferred, by descent and as heir to her husband. These sections are explicit that the land as therein provided for shall descend to her. They provide for the disposition of lands only of which the ancestor shall die seized. There is no incongruity in holding that in such cases the widow takes as heir to her husband, for she takes simply by descent that of which the husband died seized, and which must go by descent to some heirs in the absence of any testamentary disposition. . . . But the language as well as the subject-matter of section 27 is entirely different. There is no intimation therein that the interest therein pro- vided for shall descend to the surviving wife. It provides that a sur- viving wife is entitled, etc., to one-third of the real estate of which her husband may have been seized in fee simple at any time during the marriage, and in the conveyance of which she may not have joined in due form of law. . . . The language, unlike that of sections 17, 23, and 25, does not imply that she is to take one-third of such proj>- erty by descent as the heir of her husband. The legislature were not guilty of the solecism of providing for the descent to an heir of prop- erty not belonging to the ancestor." (g) May v. Fletcher, 40 Ind. 575. (h) R. S. 1881, l\ 2483, 2491, 2494. 94 JOINDER OF PARTIES. [CHAP. It was held, therefore, that in this class of cases the wife was a neces- sary party. 1 It follows from these decisions, that where the mortgage is given for the purchase-money, and the wife does not join in the mortgage, if the husband die seized of the real estate, the wife is not a necessary party to a suit to foreclose the mortgage ; but if the husband does not die seized, but has conveyed away the real estate by deed, in which the wife did not join, she is a necessary defendant. But suppose suit should be brought to foreclose the mortgage while the husband is seized of the real estate, without joining the wife, and after judgment' the husband should convey by deed, without join- ing the wife, and the husband should die before sale. What effect would the judgment and conveyance have upon the rights of the wife? According to the later decision the wife, in such case, would have an interest in the real estate, and she would not take it at the husband's death as an heir. The judgment would not affect her rights, because she was not a party to the proceedings. The judgment would not di- vest the husband of his seizin of the land. The wife would not be affected by the husband's conveyance, because she was not a party to it. The wife would therefore have an interest in the real estate, and would have a right to redeem. The right of the wife to redeem grows out of an interest held by her at tfie time of the foreclosure. Then it was, it is true, a contingent interest ; but, unlike the interest of the heirs of the husband, it was one that had a present existence that could not be divested, even by a conveyance of the husband. This interest could be divested by a foreclosure and sale of the real estate if she was a party to the proceeding; but not being a party, as to her, the conveyance under the foreclosure would be precisely the same as if made by the husband alone. Section 31, cited in the opinion in May v. Fletcher, simply provides that the widow shall not be entitled to her one-third of the real estate as against the mortgagee or persons claiming under him, where the mortgage is given for the purchase- money and not signed by her. The evident intention of the legislaure was tj place a mortgage by the husband alone, for purchase- money, upon the same footing with mortgages given for other purposes and signed by the wife, and to make the wife's rights the same in each case. This is very clearly stated in May v. Fletcher : "It is quite clear that if a wife execute a (i) Brannon v. May, 42 Ind. 92; 423; Eisman v. Poindexter, 52 Ind. Johnson v. Miller, 47 Ind. 376; Bowen 401; Myers v. Myers, 57 Ind. 307; v. Preston, 48 Ind. 367; McCafiey v. Graves v. Braden, 62 Ind. 93; Kissel Corrigan, 49 Ind. 175 ; Strong v. Clem, v. Eaton, 64 Ind. 248. 12 Ind. 37 ; Taylor v. Sample, 51 Ind. V.] JOINDER OF PARTIES. 95 mortgage with her husband, not for purchase -money, she may re- deem. We see no substantial difference, so far as the right of redemp- tion is concerned, between that case and the case of a mortgage exe- cuted by the husband alone for purchase-money. In both cases, under our law, the legal title remains in the husband, but subject to the in- cumbrance. The thirty-first section provides that the surviving wife shall not be entitled to one-third of the land as against the mort- gagee, for purchase-money, or those claiming under him, though she did not join in the mortgage. This is not to be construed to bar her claim as against such persons as individuals merely, but only as they claim under the mortgage. In both cases the m/e retains her interest, subject to tJie incumbrance, and a like interest in either case." It must be noticed that, in the case of May v. Fletcher, the court was not considering the question whether the wife was a necessary party, but whether she had the right to redeem. It does not follow, from the conclusion reached, that she had the right to redeem, that she was a necessary party. Persons who are only proper parties may have the right to redeem. But it may be laid down as a safe rule, that where the right of a party to redeem grows out of any interest he has in the real estate at the time of the foreclosure as owner, he is a neces- sary party. And though the learned judge admits, broadly, that if the wife takes by descent she can not redeem, he proceeds to refute the statement by a course of reasoning that is very convincing. In all of these cases, although it is held that the widow is an heir, it is admit- ted that she is not so " in the strict common-law sense."-" She is just such an heir as the statute makes her. The statute makes the very important distinction between her and an heir " in the strict common-law sense," that her rights can not be divested by any act of the husband, and when it is said, in May v. Fletcher, that a "judgment against the ancestor binds the heir," the court must be understood as speaking of common-law heirs. The learned judge certainly did not mean to be understood that a judg- ment against the husband bound the wife's interest in his real estate. As the statute protects the interest of the wife against any convey- ance of the husband in which she does not join, the same protection must be accorded to her under a sheriff's sale upon a judgment against the husband alone. In such case the sheriff could sell and convey just what the husband could convey, and no more. As against his heirs, strictly speaking, the husband could convey the whole estate, and the heirs at his death would take nothing. As against the wife he could ( j) Fletcher v. Holmes, 32 Tnd. 497. 96 JOINDER OF PARTIES. [CHAP. convey the estate subject to the right of Hie wife to her one-third at his death. The conveyance of the sheriff, in a foreclosure suit against the hus- band alone, would have precisely the same effect. The position taken that because the wife is not entitled to her one-third as against Hie mort- gagee she is not a necessary party, has no force. The same may be said of the husband who signed the mortgage. He has no right to claim an interest in the land as against the mortgagee, but it would hardly be claimed that therefore the husband is not a necessary party. The husband is a necessary party to bind him that he has no right to claim the land as against the mortgagee because of his having given the mortgage. The wife is a necessary party to bind her that she has no right to claim her one-third of the real estate as against the mort- gagee, because the mortgage was given for purchase-money. The rights of the wife would not be affected by the judgment without her being made a party, any more than would the rights of the husband if he were not joined. Until a judgment is rendered against the wife, establishing the fact that the mortgage was given for purchase-money, the statement that it was given for such purpose is mere assumption. She would not be bound by any recitals in the mortgage to that effect, nor by the judgment establishing the fact, because she was a party to neither. A careful study of the cases referred to on this point, it is believed, will satisfy the reader that the wife is shown by the reasoning of the court to be a necessary party in cases of this kind, whatever may have been the conclusion reached. 138. Effect of statute making wife's interest absolute on judicial sale. \\ r e have the following statute enacted since these de- cisions were rendered : " In all cases of judicial sales of real property in which any married woman has an inchoate interest by virtue of her marriage, where the inchoate interest is. not directed by the judgment to be sold, or barred by virtue of such sale, such interest shall become absolute, and vest in the wife in the same manner and to the same extent as such inchoate interest of a married woman now becomes absolute upon the death of the husband, whenever, by virtue of said sale, the legal title of the husband in and to such real property shall become absolute and vested in the purchaser thereof, his heirs or assigns, subject to the provisions of this act, and not otherwise. That when such inchoate right shall become vested, under the provisions of this act, such wife shall have the right to the immediate possession thereof, and may have partition, V.] JOINDER OF PARTIES. 97 upon agreement with the purchaser, his heirs or assigns, or upon de- mand, without the payment of rent, have the same set off to her." k This statute is not intended to add to the rights of the wife or give her any additional interest in the lands of the husband. It has the effect, however, in case of judicial sales, to convert the inchoate inter- est of the wife into an absolute interest when the land is sold, and au- thorizes her to bring suit for partition and have her one-third of the real estate set off to her, and this may be done " where the inchoate interest is not directed by the judgment to be sold, or barred by virtue of such sale" Suppose, under this statute, a mortgage had been given for purchase- money by the husband alone ; could the right of the wife to bring her .action for partition be barred by a foreclosure and sale against the hus- band alone? If the only right of the wife is to redeem, she is not a necessary, but a proper party ; but if she has such an interest in the land as entitles her to partition and to recover the one-third, she is a necessary party. Under this statute, where her interest was before in- choate, it is now absolute the moment the purchaser at the sale obtains title. According to the case of Fletcher v. Holmes, she has no interest in the husband's land during his life, but takes as his heir at his death ; and, as against a mortgage for purchase-money, she has not even the right to redeem. The case of May v. Fletcher is otherwise. It holds that she has an inchoate interest, whether she takes as heir or by virtue of her marital rights, and in either case she has the right to redeem ; but that, in case the husband died seized, she takes as heir, subject to the mortgage, and her right is limited to the redemption of the real estate, and if the husband has conveyed the real estate, her inchoate right becomes ab- solute at his death, giving her the right not only to redeem, but to maintain her action to recover the real estate. So that, under this statute, if the husband has conveyed the real estate by deed, in which the wife did not join, she is not a necessary party, and, if not joined, she may bring her action to partition the land and. recover her one- third. If the mortgage is foreclosed against the husband, and the real es- tate sold under the decree of foreclosure, this would entitle her to par- tition the same as if the husband himself had conveyed, as the hus- band's seizin is thereby divested, and the wife would not take as heir, but as his widow under section 27. While I have attempted to show that the wife is a necessary party (k) R. S. 1881, \ 2508. 7 98 JOINDER OF PARTIES. [OHAP. in an action to foreclose a mortgage for purchase-money, no matter un- der what section of the statute she takes, or whether she takes as heir or by virtue of her marital rights, the later decisions fix the law of this state the other way, and I have endeavored to give the views of the courf in the two leading cases on the point. They are entirely irrecon- cilable, and therefore the last must be taken as the law. 139. Wife can not maintain an action for partition where mortgage is assumed by husband for purchase-money. It has been held in a late case that where the husband purchases real estate subject to a mortgage, his wife can not maintain an action for partition against the purchaser, under a foreclosure of such mortgage, where she was not joined in the action, but that her only right is to redeem. She would not, therefore, be a necessary but a proper party defendant in the action to foreclose. 1 As it is well settled by the cases cited that the wife is a proper party in all of these cases, she should invariably be joined in the action. The authorities on the question whether the wife is a necessary party where she signed the mortgage are very conflicting. Our own supreme court has not passed upon the point directly, but in several cases she is spoken of as a proper party. The attempt has been made to show that her rights under a mortgage, given for purchase-money by the husband, and one signed by her, are the same. If so, the rule laid down in May v. Fletcher, would govern, and she would be a necessary party in some cases, Avhile in others she would not." 140. "Who must be made defendants, mortgagor being dead. In actions to foreclose after the death of the mortgagor, his heirs are necessary parties if he dies intestate. If the title to the real estate mortgaged has been conveyed by will, the persons to whom the same is devised are necessary, but the heirs of the mortgagor who have no title to the particular real estate covered by the mortgage, are neither necessary nor proper parties. 141. Owner of real estate must be made a defendant. It has been held in this state that where the mortgagor has con- (1) Kissell v. Eaton, 04 Ind. 248. 216; Jones on Mortgages, 1420, (m) Pomeroy's Kemedies, 343. 344. 1421, 1422; Pomeroy's Kemedies, $ (n) Ante, 137; Chambers v. Nich- 343. oison, 30 Ind. 349; "Watt v. Alvord, 25 (o) Muiri;. Gibson, 8 Ind. 187; New- Ind. 533; Martin v. Noble, 29 Ind. kirk v. Burson, 21 Ind. 129. V.] JOINDER OF PARTIES. 99 veycd the real estate, the owner of the real estate is not a necessary party in an action to foreclose the mortgage. 1 * Notwithstanding the rule laid down in these cases, that the owner of the land is not a necessary party, the great weight of authority and reason is the other way. Under our statute the mortgagor is the owner of the legal title, and the mortgage vests in the mortgagee noth- ing more than a simple lien upon the real estate ; q therefore, a convey- ance by the mortgagor passes the legal title to the purchaser. The owner of the legal title is a necessary party to the foreclosure proceed- ing, as a foreclosure and sale, without making him a party, would not bind him, and no title would pass to the purchaser under the foreclosure sale. If the mortgagor owned nothing more than the equity of redemp- tion, as was formerly the law, a purchaser from him would own but the equity of redemption, and would, in such case, be a proper but not a necessary party, but being the owner of the legal title, the foreclosure proceeding without making him a party, and a sale under it would be an absolute nullity/ t 142. Mortgagor who has conveyed real estate not a necessary party. Where the mortgagor has conveyed the legal title he ceases to be a necessary party to an action to foreclose. If a per- sonal judgment is sought against him, in addition to the foreclosure of the mortgage, the mortgagor is a necessary party for that purpose. Where the purchaser has assumed the payment of the mortgage per- sonal judgment may be taken against him, and the mortgagor is not a necessary party, even for the purpose of recovering a personal judg- ment. We have seen that where a third party agrees to pay the debt of an- other the creditor may sue the third party for the debt. This is true in case of debts secured by mortgage as well as others ; and where a party purchases real estate incumbered by mortgage, and assumes and agrees to pay the mortgage debt, the mortgagee may look to the pur- chaser of the real estate for the payment of the debt, and sue him without joining the mortgagor in the action. 8 And where several conveyances have been made of the real estate, eub- (p) Cline v. Inlow, 14 Ind. 419; v. Gooding, 99 Ind. 45; Petry v. Am- Sumraer v. Coleman, 20 Ind. 486. brosher, 100 Ind. 511. (q) Eeasoner v. Edmondson, 5 Ind. (s) Stevens v. Campbell, 21 Ind. 471 ; 393; Francis v. Porter, 7 Ind. 213; Burkham v. Beaner, 17 Ind. 367; Kel- Morton v. Noble, 22 Ind. 160; Grable lenberger v. Boyer, 37 Ind. 188; Story's v. McCulloch, 27 Ind. 472; Fletcher Eq. PI., 197; The Eaton, etc., U.K. v. Holmes, 32 Ind. 497. Co. v. Hunt, 20 Tnd. 457; Shaw v. (r) Pomeroy's Remedies, \\ 330,336; Hoadley, 8 Blkf. 165; Jones on Mort- Mark v. Murphy, 76 Ind. 534; Curtis gages, '& 1402, 1403, 1404, 1407. 100 JOINDER OF PARTIES. [CHAP. sequent to the execution of the mortgage, and each of the purchasers , has assumed the payment of the mortgage debt, the mortgagor may sue the last purchaser abne, and recover a personal judgment against him as well as a decree of foreclosure. Neither the mortgagor nor the intervening purchasers who have assumed the payment of the debt are necessary parties.' But where the purchaser takes the real estate, subject to the mort- gage, without assuming the payment of the mortgage debt, he does not become personally liable therefor ; and, in order to recover a per- sonal judgment for the debt, the mortgagor is a necessary party. It must be understood, also, that the mortgagee is not bound by any agreement or arrangement between the mortgagor and purchasers from him ; therefore the mortgagee may still look to the mortgagor for pay- ment of the debt, notwithstanding the grantees have assumed its pay- ment, and may join him in the action, for the purpose of recovering a personal judgment against him. All purchasers, subsequent to the mortgage, are properly joined as defendants; and a personal judg- ment may be taken against all who have assumed the payment of the debt." 143. When mortgagor has conveyed part of real estate mortgaged. Where the mortgagor conveys different tracts of the mortgaged real estate, and retains a part himself, the purchasers from him are not necessary parties to an action to foreclose ; but the decree, when recovered, would not bind that part of the real estate owned by persons not parties to the action. The decree would be binding upon that part of the real estate still owned by the mortgagor. But in order to bind the whole of the real estate all of the owners must be joined in the action. The question as to what part of the real estate should be first applied to the payment of the debt is one in which the mortgagee is not interested. He may enforce his mortgage against the whole of the property, or only that part still owned by the mortgagor, at his option, subject to the right of the purchasers from the mortgagor to have that part of the real estate still owned by him first exhausted for the pay- ment of the debt. v 144. If mortgagor deceased, personal representatives not necessary parties. If the mortgagor dies the owner of the real es- tate, no personal judgment can be recovered without making his per- (t) Scarry v. Eldridge, 63 Ind. 44 ; (v) Douglass v. Bishop, 27 Iowa, Petry v. Ambrosher, 100 Ind. 510. 214 ; Pomeroy's Remedies, ? 336 ; Jones (u) Pomeroy's Remedies, \ 337; on Mortgages, 1405, 1406. Jones on Mortage*, ?? 1403, 1406. V.] JOINDER OF PARTIES. 101 sonal representative a party ; but the personal representative is not a necessary party to the foreclosure of the mortgage. w 145. Junior incumbrancers proper, but not necessary parties. Junior incumbrancers are proper, but not necessary parties defendant in foreclosure proceedings. 1 In all cases where the party has such an interest in the real estate as would entitle him to redeem, he may be regarded as a proper party defendants 146. Pendente lite purchasers. Where the real estate is con- veyed after the suit to foreclose has been brought, or any liens have at- tached pendente lite, the purchaser or persons obtaining such liens need not be made parties to the action. It is only such parties as have an interest in the real estate at the time suit is brought that are proper parties.* 147. Heirs of purchaser. Where the mortgagor has transferred the real estate, and the purchaser is deceased, his heirs are necessary parties to the action." 148. Prior incumbrancers. Prior incumbrancers are proper, but not necessary, parties. b 149. Surviving partners. Where a mortgage is given jointly by the mortgagors as partners, upon the death of one the mortgage must be foreclosed against the survivor, without joining the heirs or widow of the deceased partner. PARTNERSHIP CONTRACTS. 150. Common-law rule where one partner is deceased. At common law, the rule was that the surviving partner was the only proper party defendant in actions on partnership contracts, and that (w) Slaughter v. Foust, 4 Blkf. 379; 34 Ind. 262; Murdock v. Ford, 17 John v. Hunt, 1 Blkf. 324; Newkirk Ind. 52. v. Burson, 21 Ind. 129; Watts v. Green, (y) Jones on Mortgages, 1394, 30 Ind. 98; Jones on Mortgages, 1414. 1395, 1396. (x) Pattison v. Shaw, 6 Ind". 377; (z) Jones on Mortgages, 1411. Kenton v. Spencer, 6 Ind. 321 ; Mack (a) Milroy v. Stockwell, 1 Ind. 35; v. Grover, 12 Ind. 254; Harris v. Har- Jones on Mortgages, 1415. lin, 14 Ind. 439; Meridith v. Lackey, (b) Wright v. Bundy, 1.1 Ind. 398; 14 Ind. 529 ; Proctor v. Baker, 15 Ind. Pattison v. Shaw, 6 Ind. 377 ; Masters 178; Meridith v. Lackey, 16 Ind. 1; . Templeton, 92 Ind. 447. Bowen r. Wood, 35 Ind. 268; Martin (c) Huston v. Neal, 41 Ind 504. v. Noble, 29 Ind. 216; Holmes r. Bybec, 102 JOINDER OF PARTIES. [CHAP. the personal representative of the deceased partner could not be joined in the action. The creditors of the partnership were confined in their remedy at law to an action against the surviving partner. d 151. Equitable rule. The rule in equity was different. Mr. Story, in his work on partnership, says : " We have seen that, at common law, the sole right of action of the joint creditors is against the survivors ; and the inquiry here naturally presented is, whether they have any remedy in equity? The doctrine formerly held upon this subject seems to have been that the joint cred- itors had no claim whatsoever in equity against the estate of the de- ceased partner, except when the surviving partners were at the time, or subsequently became, insolvent or bankrupt. But that doctrine has since been overturned ; and it is now held that, in equity, all partnership debts are to be deemed joint and several, and consequently the joint creditors have, in all cases, a right to proceed at law against the sur- vivors, and an election, also, to proceed in equity against the estate of the deceased partner, whether the survivors be insolvent or bankrupt or not. The consequence is, that the joint creditors need not now wait until the partnership affairs are wound up, and a final adjustment thereof is made ; but they may at once proceed, as upon a joint and several contract, in equity against the estate of the deceased partner ; al- though, in any such suit, the surviving partners must be made parties, as persons interested in taking the account." 6 Mr. Parsons says : "Thus, after some conflict and uncertainty, it seems now to be settled in England that on the death of a partner a creditor of the firm may proceed at once in equity against the estate of the deceased, whether the firm or the surviving partners be solvent or otherwise, the court requiring, however, that the surviving partners should be made parties because they are interested in the account. " f 152. Under the code. According to these authorities the partner- ship creditor might sue the survivor alone, at law, or he might proceed in equity against the personal representative of the estate of the de- ceased partner, making the surviving partner a party to the action. It was held in this state, under the statute of 1838, that the admin- istrator of the deceased partner might be sued at law for the debt with- out joining the surviving partner, or the surviving partner might be sued alone. g (d) Story on Partnership, 361, (e) Story on Partnership, 362. 362 and notes; Burgwin v. Hostler, 1 (f ) Parsons' Part. 448. Am. Dec. 582 (Taylor, 124) ; Chittyon (g) Ransom v. Pomeroy, 5 Blkf. 383; Pleading, p. 57. Parker v. Miller, 7 Blkf. 150. V.] JOINDER OF PARTIES. 103 The statute of 1838 expressly authorized the personal representative! of a joint obligor to be sued in the same manner as if the obligors were jointly and severally liable. 11 This provision of the statute of 1838 has not been carried into the code of 1852, and the question whether the survivor and the personal representative of the deceased partner can be sued jointly, or the per- sonal representative sued alone, must depend upon the general provi- sion of the code with reference to parties. That the personal represen- tative of a deceased joint contractor can not be joined with the survivor has been shown already.' There is a material difference between the contract of joint contractors and that of partners, so far as the liabilities of the parties are concerned. The surviving partner represents the partnership, and is required by statute to inventory the property and settle the partnership business." The personal repre- sentative of the deceased partner has no interest in the partnership property as against partnership creditors. His only right is to any surplus remaining after payment of the debts and the settlement of the partnership business. 1 ' It is equally well settled that in case of the death of one of the partners, the partnership creditors must look to the partnership prop- erty for the payment of their debts, at least as between them and the individual creditors of the deceased partner. 1 The partnership property being the primary fund out of which the partnership debts are to be paid, it would seem to be the reasonable rule to require that the partnership fund should be exhausted before applying to the property of the deceased partner, and that the surviving partner should be first sued before an action could be maintained against his estate, except where it is shown that there are no partner- ship funds out of which the debt could be made ; but as we have seen the rule was carried beyond this in equity, the creditor being allowed to proceed directly against the estate of the deceased partner, the only requirement being that the surviving partners should be joined as par- ties because they were interested in the accounting. 111 (h) Stat. 1838, p. 358, 2. (1) Matlock v. Matlock, 5 Ind. 403; (i) Ante, 124. Holland v. Fuller, 13 Ind. 195; Dean ( j) 1 K. S. 1876, p. 641. v. Phillips, 17 Ind. 406; Smiths. Evans, (k) Holland v. Fuller, 13 Ind. 195; 37 Ind. 526; Schaeffer v. Fithian, 17 Matlock v. Matlock, 5 Ind. 403; Hun- Ind. 463; Kistner v. Sidlinger 33 Ind. ter v. Neal, 41 Ind. 504; Skillen v. 114; Hardy v. Overman, 36 Ind. 549; Jones, 44 Ind. 136-144; Krutz v. Olleman v. Reagan, 28 Ind. 109. Craig, 53 Ind. 561, 572; Lindley Part. (m) Ante, 151. 1033; Parsons' Part. 440, 443; Story'.* Part., ? 340. 104 JOINDER OF PARTIES. [CHAP. 153. The authorities under the code. The first case where the question was considered in Indiana, after the code of 1852 was enacted, was that of Braxton v. The State," which was an action on an execu- tor's bond. One of the executors being dead, his administrators were sued jointly with the surviving executors. They contended that they were improperly joined, but the supreme court held otherwise. The question of the right to sue the deceased partner in the first instance was not before the court, but the court took occasion to discuss it. After stating the common-law rule that the surviving partner alone could be sued, and that, formerly, the estate of the deceased partner was only liable in equity after the remedy against the survivor had been exhausted, the court say : " This rule has been adhered to by most of the American courts. But, under the recent decisions in England, the representatives of the deceased partner may be proceeded against in equity in the first instance, without any previous resort to the sur- viving partner, or any evidence of his insolvency. In an early decis- ion in this state, this court adhered to the rule recognized by the leading American cases. " The same rule seems to have been applied to other joint obligations,, though the reason for the rule is not applicable." It was held that, as the distinction between actions at law and suits in equity were abolished, and it was provided that any person might be made a defendant who had or claimed an interest in the controversy adverse to the plaintiff, or was a necessary party to a complete deter- mination or settlement of the question involved, the administrators were properly joined in the action. It has since been held that the bond sued on in this case was not joint and several, and, so far as the case holds otherwise, it has been expressly overruled. 15 And, since this decision was rendered, the statute for the settlement of decedents' estates has been so amended as to provide, in express terms, that an executor or administrator can not be joined with the surviving debtor. q In the case of Myerv. Thornburg, the plaiutfFhad brought his action against the surviving partner, and recovered judg- ment. An execution thereon being returned nulla bona, he filed the note sued on as a claim against the estate of the deceased partner. The claim was allowed by the court below, but the estate not being solvent, it was ordered that the claim should not be paid until the in- dividual creditors of the estate were satisfied. The claimant contended that he was entitled to share the estate pari pasm w r ith the individual (n) Braxton v. The State. 25 In d. 82. (p) The State v. Wyant, 67 Ind. (o) Citing Brown v. Benight, 3 Blkf. 25, 33. 39. (q) R- S. 1881, ? 2311, 2312. V.] JOINDER OF PARTIES. 105 creditors, and this was the question presented to the supreme court. After stating the rule that the partnership creditors must resort to the partnership assets, and the individual creditors to the assets of the de- ceased partner, the court say: "There is, however, an exception to this rule recognized in some of the cases which would be applicable to the case at bar, and, if admitted, would seem to take the case out of the general rule. The exception is this, that where tliere is no joint property and no living solvent partner, the joint creditors are entitled to share the separate property paripasm with the separate creditors. . . . Such is the settled and established rule, as we are enabled to collect it, both in bankruptcy and in equity; and, according to this rule, the complainant could not, in this case, be permitted to seek indemnity for his claim from the separate estate paripassu, with the separate creditors, as it is a conceded fact in the cause that there are joint funds, although very inconsiderable, and greatly insufficient to pay the debt of the complainant." It was held that the order made by the court below was proper. r While the question of parties is not directly presented or considered, the reasoning of the court leads to the conclusion that the partnership creditors can not sue the estate of the deceased partner, where there are individual creditors of the estate, without first exhausting the partner- ship assets, or showing that no partnership estate exists. In the case of Dean v. Phillips it was held that partnership debts, in equity, were joint and several, and that the " creditors of a firm may collect their debts out of the property of one of its members, unless that member has separate creditors who are entitled to be first paid out of his separate effects." 8 And this rule was applied in a later case to an action by a partner- ship creditor against the heirs of a deceased partner to foreclose a mort- gage given for the debt of the firm. The heirs answered that the mort- gage was given for the firm debt, and that there were assets of the firm sufficient for its payment. It was held that the answer was insufficient for want of an allegation that there were individual creditors, the court quoting the language in Dean v. Phillips with approbation. 4 In the case of Vance v. Cowing, 13 Ind. 460, it was held that it was not necessary for the complaint against the administrator to show that a judgment had been recovered against fhe surviving partner, "because (r) "Wegerr. Thornburg, 15 Ind. 124, part 1, Lead. Gas. Eq. 72; Story on citing 1 Chitty on Plead. 50; Story on Part., ? 363; Muriell v. Neill, 8 How Part., 362; 3 Kent's Com. 74; Me- U. S 414; Stat. 1852, p.- 262, ? 70. Cnllough v. Dashiel, and notes, 1 Am. (s) Dean v. Phillip?, 17 Ind. 406. Lead Cas. 460 ; Silk v. Prime, vol. 2, (t) Hardy v. Overman, 36 Ind. 549. 106 JOIXDEIi OF PARTIES. [dlAP. it was averred that he icas ami continued to be insolvent." This case ad- heres to the rule that the surviving partner must be first sued, except in those cases M here the partnership is shown to be bankrupt or in- solvent. It has also been held that the administrator cau not be joined with the surviving partner as a plaintiff'," but this is upon the ground that he has no interest in the judgment to be recovered. The surviving partner has the right to assign choses in action of the firm, and, where the indorsee brings suit on a chose in action so assigned, making the surviving partner a party defendant to answer as to his interest therein, the administrator of the deceased partner is not a necessary party. v The case of McCoy v. Wilson was an action brought against the sur- viving partner, the executor of the deceased partner, and a third party, who was surety on the note sued on. The opinion in the case does not disclose whether the note was joint or several, and the question of the joinder of the parties was not raised or considered. w Section 624 of the code of 1881 provides that the "estate's execu- tors and administrators " of either of the joint contractors, upon his death, shall be liable " to the same extent, and in the same manner, as if such contracts were joint and several. " x Whether this section of the code was intended to apply to partnership contracts may well be doubted, as the rule that the estates of partners shall be liable to the same extent and in the same manner as in ordinary joint and several contracts was certainly not intended. 154. Effect of the authorities. It will be seen that to extract an established rule from these cases would be impossible. Each case is a case to itself, fixing no rule governing cases of this kind generally, and no two of them can be said to be in harmony, while they are de- cided in such general terms and are so entirely unsatisfactory that it is equally impossible to say that they are conflicting. That the action can be maintained against the. surviving partner alone, and that this is the better practice, is well settled. That the partnership creditor may prqceed against the estate of the deceased partner without first suing the surviving partner, wJiere the partnership is insolvent, may be regarded as settled by the decisions of this state. That the estate of the deceased partner may be sued in the first in- (u) Nicklaus v. Dahn, 63 Ind. 87. v. Fuller, 13 Ind. 195; Conant v. Prary. (v) Willson v. Nicholson, 61 Ind. 241, 49 Ind. 530 ; 1 Story's Eq. Jur., 676. citing Parsons' Part., pp. 440, 441; (w) McCoy v. Wilson, 58 Ind. 447; Story's Part., ? 328, 344, 362; Holland Ditts v. Lonsdale, 49 Ind. 521. (x) K. S. 1881, ?624. V.] JOINDER OF PARTIES. 107 stance, where there are assets belonging to the partnership, has not been expressly decided, and such a practice should not be permitted. The partnership assets being the primary fund out of which the part- nership debts should be paid, that fund should be first exhausted. Under the present statute for the settlement of decedents' estates, it is clear that the surviving partner and the executor or administrator can not be joined in the same action. 7 Mr. Pomeroy, in his work on Remedies, in speaking of the joinder .of the survivor and the personal representative of the deceased joint contractor, says: " It is now established, by a great preponderance of authority, in those states whose codes do not contain the special pro- vision concerning joint liability already referred to, that these rules, as they existed immediately prior to the reform legislation, have not been in any manner modified, but remain in active operation as a part of the present system. The practical result is, upon the death of one or more joint debtors, obligors or promisors, a legal action can be main- tained against the survivors alone, and in such action the personal representatives of the deceased can not be made defendants for any purpose. An equitable action, however, can be maintained against the administrators or executors of the deceased when, and only when, either the legal remedy against the survivors has been exhausted, or such remedy would be absolutely useless. In such equitable action, therefore, the plaintiff must either aver and prove the recovery of a judgment, and the issue and the return of an execution thereon un- satisfied, against the survivors, or else that the survivors are utterly insolvent. z " The rule thus established in New York and some other states dif- fers from that prevailing in England in a single particular. The Eng- lish court of chancery permits a suit against the personal representa- tive of the deceased at once, without attempting, much less exhaust- ing, any remedy at law against the survivor. In other words, the creditor has his option at all times to sue the survivor at law, or the representatives of the deceased in equity, whether the survivors are (y) K. S. 1881, 2311, 2312. Whitney, 15 Ind. 280, 283; Barlow v. (z) Citing Voorhis v. Childs, 17 N. Scott's Adm'r, 12 Iowa, 63; Pecker v. Y. 354; Richter v. Poppenhausen, 42 Cannon, 11 Iowa, 20; Williams v. N.Y. 373; Pope v. Cole, 55 N. Y. 124; Scott's Adm'r, 11 Iowa, 474; County Lane v. Doty, 4 Barb. 534: Vorhis v. of Wapello v. Bingham, 10 Iowa, 39 Baxter, 1 Abb. Pr. 43; Moorehouse v. Childs v. Hyde, 10 Iowa, 294; People' Ballou, 16 Barb. 289; Bentz v. Thur- v. Jenkins, 17 Cal. 500; Humphreys v. her, 1 N.Y. Sup. Ct. 645; Maples v. Crane, 5 Cal. 173;* May v. Hanson, 6 Geller, 1 Nev. 233, 237, 239; Fowler v. Cal. 642. Huston, 1 Nev. 469, 472; Kimball v. 108 JOINDER OF PARTIES. [CHAP. solvent or not ; and this doctrine has been adopted in several Ameri- can states In Indiana it is declared to be the true meaning and intent of the provisions of tJie code abolishing the distinctions between legal and equitable actiom, and introducing the equitable principles concern- ing parties, and providing for a severance in tJie judgment, tiiat, upon the deatJi of one or more joint; or joint and several debtors or obligors, an action icill lie at once against tJie survivors and the administrators or executors of the deceased."* The learned author, it must be understood, is considering the ques- tion of ordinary joint contracts, not partnership contracts, but it will be seen that in Indiana the supreme court has been very liberal in con- struing the statute authorizing the joinder of parties in this class of cases, and there is no reason why the same rule should not be applied in the case of partnership contracts, save that the partnership property is first liable. The statute expressly authorizes the court to render the judgment in accordance with the liability of the parties as shown upon the trial. b The judgment must necessarily be joint; but the court has ample power, under the statute, to direct that the partnership effects be first exhausted. The survivor could not be joined in an ordinary claim filed against the estate of the deceased partner. Where a claim is filed against an estate, it has been held that no other party can be joined. It would be necessary, therefore, to bring a civil action against the administrator and the surviving partner, which can not be done under the present decedents' act. 155. Dormant partners. A dormant partner need not be joined in an action against the firm of .which he is a member; but when known to the plaintiff, he may be joined as other members of the firm. d 156. Nominal partners. Nominal partners are those who ap- pear or are held out to the world as partners, but who have no real in- terest in the firm or business. They are liable for the debts of the {a) Pomeroys Remedies, 302-304, (b) R. S. 1881, 568. citing Braxton v. The State, '25 Ind. (c) Noble v. McGinnis, 55 Ind. 528; 82; Eaton v. Burns, 31 Ind. 390; Niblack v. Goodman, 07 Ind. 174. Klussman v. Copeland, 18 Ind. 306; (d) Gilmore v. Merritt, 62 Ind. 525; Voris v. The State, 47 Ind. 345, 349, Goble v. Gale, 7 Blkf. 218; Cregler r. 350; Myers r. McCray, 47 Ind. 293, Durham. 9 Ind. 375; Story's Part., 297, citing Owen i The State, 25 Ind. 241 ; Parsons' Part. 290. 107. V.] JOINDER OF PARTIES. 109 partnership, and should be joined as defendants in actions against the firm. 6 ACTIONS TO PARTITION REAL ESTATE. 157. All the owners necessary parties. All persons owning an estate in the land, whether legal or equitable, are necessary parties to an action for partition. f 158. Creditors. A creditor of the ancestor is not a proper party to a partition proceeding between the widow and heirs ; g nor is a lien- holder whose lien covers the whole real estate. 1 ' 159. Parties holding liens on undivided interests. The question whether parties holding liens upon an undivided part of the real estate are proper parties is not well settled. It has been held, however, in a recent case in this state, that they are proper parties.' In some, if not most of the states, the question has been directly set- tled by legislation authorizing the joinder of such lien-holders.J But in this state we have no such statutory provision. In the case of Milligan v. Poole, 35 Ind. 64, the supreme court say such a lien-holder is a proper party, and that he will not be bound by the judgment if not made a party. Washburn on Real Property is cited as authority for the position. k The authority is in point; but as all of the authorities cited by the author are from other states, and this question has been materially changed by statute in most of the states, it must have but little weight. It is evident that our statute does not contemplate the joinder of any persons except those having some estate in the land. The statute provides: "Sec. 1. Any person holding lands as joint tenant or tenant in common, whether in his own right, or as executor or trustee, may compel partition thereof in the manner provided in this act. An administrator or executor may also compel partition as a ten- ant in common or joint tenant may do, whenever, in the discharge of his duties as such, it shall be necessary for him to sell the estate of the deceased therein." l (e) Ditts v. Lonsdale, 49 Ind 521, (g) Gregory v. High, 29 Ind. 627. 529; Story's Part, \\ 64, 80; Parsons' (h) Pomeroy's Remedies, 373. Part. 31; Streckerw. Conn, 90 Ind. 469. ^i) Clark v. Stevenson, 73 Ind. 489. (f) Milligan v. Poole, 35 Ind. 64; (j ) Pomeroy's Remedies, 375, note 1. Godfrey v. Godfrey, 17 Ind. 6; Davis (k) Wshburn on Real Prop. 585. v. Davi, 43 Ind 561; Harlan v. Stout, (1) R. S. 1881, 1186.' 22 Ind. 488; 2 Estee's PI. and Forms, 324, 20. 110 JOINDER OF PARTIES. [CHAP. The next section authorizes such tenant to petition for the partition of lands owned by the petitioner and others. The statute further provides that the proceedings, practice, and pleadings shall be the same as in " civil suits. " n These are all the provisions of the statute with reference to parties. There is nothing in the statute indicating who should be made par- ties defendant. In the case of Milligan v. Poole, the question whether a lien-holder was a proper party was not before the court, and what is said on the subject is mere dictum. There two parties owned the land as tenants in common. One of the parties sold his interest to third parties, executing to them a title bond and putting them in possession. Thus, as to one-half of the land, the original owner held the legal title, while his purchasers were the owners of the equitable title and were in possession. Suit was brought by the party owning the other half of the land, for partition, making the parties holding both the legal and equitable title defendants. The land, not being susceptible of parti- tion, was sold, and the purchase-money paid into court. The sole question before the supreme court was, how the one-half of the purchase-money should be divided between the holders of the title bond, who had paid a part of the purchase-money, and the party from whom they had purchased. The question of parties was not before the court, and what was said by the court as to the effect of the failure to join a mere lien-holder as a defendant, was entirely outside of the case. Mr. Pomeroy, in his w r ork on Remedies, lays down the rule that, where the action is simply to partition the laud the incumbrancers are not proper parties, but where the object is to cause a sale of the land and a division of the money they are proper, if not necessary parties. If this is the law it is evident that, under our practice, the incum- brancers would be proper parties in every instance, because every par- tition proceeding, under our statute, may result in a sale of the prop- erty, 'no matter whether the complaint seeks such a remedy or not. If the property is not susceptible of partition without injury to the several owners, the property must be sold and the purchase-money di- vided. It would seem, in such a case, to be consistent with the liberal provisions of our statute as to parties, that the incumbrancer should be made a party in order to transfer his lien from the laud itself to that portion of the purchase-money allotted to the part owner against whose interest in the real estate he holds a lien, and that he may have (m) R. S. 1881, 1187. () Pomeroy's Remedies, 374, 375. (n) R. S. 1881, 1188. V.] JOINDER OF PARTIES. Ill an opportunity to protect his interest. It is well settled in this state that, where the land is sold in a partition proceeding, the parties take the same interest in the purchase-money that they held in the land. p But, in order that the lien of the incunibrancer may be transferred from the land to the purchase-money, it would seem to be proper, if not absolutely necessary, that he should be made a party to the action. Where the land is not sold, but partitioned, it is entirely unnecessary that the incunibrancer should be joined. It is true that no party can be bound by a judgment unless he is a party to the suit in which the judgment is rendered, but in such a case his rights would not be af- fected by the judgment. His rights are the same after that they were before the judgment was rendered, whether the judgment binds him or not. His mortgage simply covers the interest owned by the party against whom he holds the lien. Before the partition his mortgage or other lien covers an undivided interest, subject to the right of the other owners to have the share owned by him set off in a body. If the mortgage were foreclosed before partition the undivided interest could be set off, notwithstanding the mortgage and its foreclosure, and if the mortgage were foreclosed after the partition, whether the mortgagee was a party to the partition proceeding or not, a purchaser under the foreclosure proceeding would only take the interest of the mortgagor in the whole tract, and his interest in the whole tract is that part of the land awarded him in the partition proceeding. The interest of the lien-holder is not adverse to the petitioner, and no judgment in any form could be rendered against him. The careful pleader will make parties to the action all persons hold- ing liens upon an undivided interest in the land. Those who hold a lien upon the whole of the land are not proper parties, and should never be joined. Nor can a party who claims to be the owner of the whole tract of land be admitted as a party on his own application. q 160. Parties laboring under legal disabilities. Where a party is laboring under such a disability as would constitute a cause of defense to the action, this is no excuse for not joining such party as a de- fendant w r here he would otherwise be a necessary party. The defense of personal disability, such, for instance, as infancy, is one that may or may not be interposed, and, until it is, the party is as much a nec- essary party as if no such disability existed. (p) Milligan v. Pool, 35 Ind, 64; (q) Baker v. Riley, 16 Ind. 479. Applegate v. Edwards, 45 Ind. 329, 334; Clark v. Stevenson, 73 Ind. 489. 112 JOINDER OF PARTIES. [CHAP. 161. Where the state is interested. But the rule is otherwise where a necessary defendant can not be sued, as in case of the state/ There the action should proceed as if the state were not a party to the contract sued on, or otherwise liable. The relief must be sought solely against the other parties liable. 162. In actions to reinstate lost or destroyed papers or records. There is a special statute authorizing proceedings to rein- state papers and records of the courts of this state that have been lost or destroyed. 8 The provisions of the act extend, also, to all plead- ings, papers, wills or writs, that form part of the evidence of any title or interest in any real estate, either legal or equitable, and authorizes the owner of such interest in real estate to bring suit to reinstate such papers or records.' Where the proceeding is instituted for the purpose of reinstating papers or records in an action pending or disposed of, it is evident that all persons who were parties to the original action should be made parties. Where the action is for the purpose of restoring a paper or record as evidence of title to real estate, the statute provides that " all persons having or claiming an interest in such real estate shall be made defendants." (r) Shoemaker v. The Board of (s) R. S. 1881, 1232. Comm'rs of Grant County, 36 Ind. 1 75 ; (t) R. S. 1881, 1239, 1240. Orleans Nav. Co. v. Schooner Amelia, 12 Am. Dec. 516, and note. VI.] NEW PARTIES INTERPLEADER. 113 CHAPTER VI. NEW PARTIES INTERPLEADER. SECTION. SECTION. 163. When new parties may be sub- 170. In actions to recover real or per- stituted. sonal property. 164. Death of party; personal repre- sentative substituted. INTERPLEADER. 165. Under the decedents' act. 171. The statute. 166. When heirs substituted. 172. When party will be substituted 167. In case of legal disability. by interpleader. 168. When party transfers his interest. 173. How new party substituted. 169. When complete determination of 174. The notice. controversy can not be had with- 175. When original party will be dis- out new parties. charged. 163. When new parties may be substituted. Necessary parties to an action, who have been omitted may be brought in after the suit is commenced. This may be done on the application of the plaintiff or of the defendants already joined, or of the party who has been improperly omitted, or by order of the court without any appli- cation being made therefor. The making of new parties is governed wholly by statute, and the right to bring other parties before the court is not limited to necessary parties. If they are shown to be proper parties, they may be permitted to defend on their own application, or compelled to do so on the appli- cation of other parties to the action. The statute provides: "No action shall abate by the death or disa- bility of a party, or by the transfer of any interest therein, if the cause of action survive or continue. . In case of the death or disability of a party, the court, on motion or supplemental complaint, at any time within one year, or on supplemental complaint afterward, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the court may al- low the person to whom the transfer is made to be substituted in the action."* (a) R. S. 1881, 271. 8 114 NEW PARTIES INTERPLEADER. [CHAP. \ Strictly speaking, this section does not authorize the joinder of new parties, as the interest or liability represented is the same, and the party admitted stands in the place of the old party. The section authorizes the bringing in of other parties in three cases : 1. Upon the death of a party ; 2. Upon the disability of a party ; and 3. Upon the assignment by a party of his interest in the action to some person not a party to the suit. 164. Death of party ; personal representative substituted. In case of the death of either a plaintiff or defendant, the question whether his personal representative can be substituted or not depends upon whether the action is one that survives. If the action is one that does not survive, the action terminates with the death of either the plaintiff or defendant, and his personal representative can not be sub- stituted. 1 ' The statute provides that a cause of action arising out of an injury to the person of either party, except in cases in which an action is given for an injury causing the death of any person, and actions for seduction, false imprisonment, and malicious prosecution, shall not sur- vive. "All other causes of action survive, and may be brought by or against the representatives of the deceased party, except actions for promises to marry. " c Taking these two statutes together, the right to substitute the per- sonal representative upon the death of either party would exist ia all cases except those arising out of an injury to the person of either party (which includes an injury to the character merely as in cases of libel or slander), actions for seduction, false imprisonment, malicious prose- cution, and actions for promises of marriage. The statute expressly excepts cases arising out of injuries causing the death of a party, and provides in express terms that such action shall survive. But there can be no substitution of the personal repre- sentative in this class of actions, so far as the plaintiff is concerned, as the cause of action only accrues upon his death. If the statute stood alone, without having received a different con- struction by the supreme court, I should say that where a party re- ceived an injury to the person and brought his action for damages therefor, and afterward died from the effects of the injury, that his personal representative could be substituted and the action proceed in (b) Stout v. The Indianapolis and Indianapolis and St. Louis K. E. Co. tv St. Louis E. E. Co., 41 Ind. 149 ; The Stout, 53 Ind. 143. (c) E. S. 1881, 282, 283. VI.] NEW PARTIES INTERPLEADER. 115 his name. As the statute was construed in an early case this would be true. d In this case it is held that " the right of action may be regarded as con- tinued by tJie statute in tlie personal representative just as it existed in Hie deceased" This construction would clearly authorize the personal representative to be made a party. But it has been held in a later case that the ac- tion that existed in the party injured does not survive, but that the statute creates a new and independent cause of action growing out of the death of the party injured, and the original cause of action dies with the person. 8 With this construction of the statute, and this being the later case, it must be accepted as the proper construction, there can be no new party substituted where the party injured dies, but the present action must abate and a new one be brought by the personal representative. . The supreme court has so decided in a late case in which the plaint- iff died after the cause had been reversed in the general term of the superior court, and was appealed by an administrator to the supreme court. It was held that the action died with the person, and there- fore an administrator had no right of appeal/ While the last case cited is clearly to the effect that the action abates by the death of the party, the language used in giving a construction to the statute is in conflict with the case of the Jeffersonville R. R. Co. v. Swayne. The court say: "The action of Peter Stout " (the deceased) "was based upon the common-law liability of the appellant, while the pres- ent action is based upon the statute ; but the foundation of the action, in each case, was the injury caused by the negligence of the appellant. The death of Peter Stout, after verdict and before judgment, caused the action to abate. 8 Upon his death his administrator brought the present action. We think the causes of action were the same. . . Our statute makes the administrator the representative of the deceased." The case of the Jeffersonville R. R. Co. v. Swayne, decided in ex- press terms that the cause of action is not the same, and that the ad- ministrator does not represent the deceased, but acts as a trustee of the parties entitled to the damages recovered. If the new action is the (d) Long v. Morrison, 14 Ind. 595. Indianapolis and St. Louis R. R. Co. v (e) The Jeffersonville R. R. Co. v. Stout, 53 Ind. 143. Swayne, 26 Ind. 477, 484. (g) Citing Stout v. I. & St. L. R. R. (f ) Stout v. The Indianapolis and Co, 41 Ind. 149. St. Louis R. R. Co., 41 Ind. 149 ; The 116 NEW PARTIES INTERPLEADER. [CHAP. same as the other there is no reason why the action should not be con- tinued in the name of the administrator. It is solely upon the ground that the first cause of action dies with the person, and that the cause of action given by the statute is a new and independent one, that the necessity of bringing a new action instead of continuing the old one can be founded. The question presented in the case of the Indian- apolis & St. L. R. Co. v. Stout, was whether a deposition taken in the action brought by Stout in his lifetime could be used in the new action brought by his administrator. The deposition was objected to on the ground that it was taken in the other cause, and that neither the cause of action nor the parties were the same, but the court held that the cause of action was the same, and therefore the deposition was prop- erly admitted. Notwithstanding this reasoning of the court, however, on this point, it was held that the first cause of action abated, and an administrator could not be made a party. So far as the defendant is concerned, his death would terminate the cause of action brought by the person injured; but where the action is brought by the administrator under the statute, the death of the de- fendant does not abate the action, and his administrator may be sub- stituted as the new party. Strictly speaking, actions for libel or slander could not be classed under the head of actions for injury to the person ; but they are so considered, so that the administrator of either party could not be made a party upon his death, but the action abates. 11 Actions for seduction and false imprisonment and malicious prosecu- tion survive, and may be prosecuted in the name of the personal rep- resentative. 1 165. Under the decedents' act. The act of 1881, for the set- tlement of decedents' estates, provides that " no action shall be brought by complaint and summons against the executor or administrator of an estate for the recovery of any claim against the decedent; but the holder thereof, whether such claim be due or not, shall file a succinct and definite statement thereof in the office of the clerk of the court in which the estate in pending ;" J and this provision is applied to joint contracts. 11 This statute and the revised code went into force at the same time. They are conflicting. It is evidently the intention of the decedents' act, that no judgment shall be taken against an administra- tor or executor, on a complaint, for any claim against the decedent, (h) Townshend on Slander, 299. ( j) R. S. 1881, 2310. (i) R. S. 1881, 282. (k) R. S. 1881, % 2311, 2312. VI.] NEW PARTIES INTERPLEADER. 117 even where tne cause of action is joint and the decedent is only a surety ; l and if the executor or administrator could not be joined in the first instance, for the same reason he could not be substituted upon the death of the decedent. This provision in the decedents' act is a step in the wrong direction, as it must necessarily multiply the number of suits to be brought and increase litigation. The provision, if it did not conflict with the code, would be so construed, it is believed, as to pre- vent the substitution of the executor or administrator ; but as it does not, in terms, forbid the substitution, but applies to the commencement of actions, and the code expressly provides for it, the substitution should be allowed. 1 66. When heirs substituted. It must not be understood that the personal representative is the necessary party to be substituted in every case upon the death of a party. If the action is one that must be prosecuted or defended by the personal representatives if brought after the party's death, such representative is the proper party to be substituted ; but if the action is one that must be prosecuted by or against the heirs of the deceased, they should be substituted as the parties. Where both the personal representatives and the heirs would be necessary parties, they must both be substituted. 1 " 167. In case of legal disability. Under the clause of the stat- ute authorizing the joinder or substitution of new parties in case of disability, it would seem to have been intended that the statute should apply to cases where the disability occurred after the suit was brought. If so, it would not apply to the disability of infancy. But the supreme court has held that a next friend may be brought in after the action has been brought, notwithstanding the provision of the statute that no summons shall issue where the action is brought by an infant until some competent and -responsible person shall appear as next friend. n 168. When party transfers his interest. In case of the transfer of his interest by one of the parties, the court " may allow the person to whom the transfer is made to be substituted in the action," but the court is not required to do so, and such substitution is entirely unnecessary. If the plaintiff transfers his interest during the pend- ency of the suit, the action may, nevertheless, be prosecuted to judg- ment in his name. A purchaser from the defendant pendente lite (1) K. S. 1881, 2313. ' (n) Greenman v. Cohee, 61 Ind. 201. (m) Busk. Prac., p. 57 ; ante, 132, (o) Harvey v. Myer, 9 Ind. 391; 133, 134; Benoit v. Schneider, 39 Ind. Dearmond v. Dearmond, 12 Ind. 455; 591. Dearmond r. Dearmond. 10 Ind. 191; Jones v. Julian, 12 Ind. 274. 118 NEW PARTIES INTERPLEADER. [CHAP. takes with full notice, and will be bound by the judgment the same as if he were made a party. P 169. When complete determination of controversy can not be had without new parties. " The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others or by saving their rights, but when a complete determination of the controversy can not be had without Hie presence of other parties, the court must cause them to be joined as proper parties" q This clause of the section of the statute is imperative, and applies directly to the court, whether any application is made for the joinder of such new parties 0r not, but there is no reason why either party may not make the application, and if the court finds that the party should be brought in, the order must be made. The court is not bound to wait, however, for one of the parties to make the application. If the pleadings disclose the fact that a complete determination of the contro- versy can not be had Avithout bringing other parties before the court, the statute imperatively requires that the court shall cause them to be joined. The statute uses the term proper party, but it is evident that this section only requires that a necessary party should be joined, be- cause it is only such parties whose presence is necessary to a complete determination of the controversy/ The new party can only be brought in when it is necessary to the settlement of the controversy, as between the plaintiff and the defend- ants. While the statute authorizes defendants, when before the court, to settle a controversy between themselves, growing out of the subject- matter of the action, new parties can not be brought in, under this statute, for any such purpose. 8 170. In actions to recover real or personal property. The same section of the statute provides that, " when in an action for the recovery of real or personal property, a person not a party to the ac- tion, but having an interest in the subject thereof, makes application (p) Truitt v. Truitt, 38 Ind. 16; (s) Frear r. Bryan, 12 Ind. 343; Green v. "White, 7 Blkf. 242; Freeman Luark v. Malone, 34 Ind. 444; Merrill on Judgments, 191, 192, 193, 194, v. Wells, 18 Ind. 171 ; Scoby v. Finton. and notes. 39 Ind. 275; Newcomb v. Dunham, 27 (q) R. S. 1881, 272. Ind. 285; Kemp r. Mitchell, 36 Ind. (r) Clough v. Thomas, 53 Ind. 24; 249; Hunter v. McLaughlin, 43 Ind. Pomeroy's Kemedies, $412,414; ante, 38; Summers v. Huston. 48 Ind. 228; 118. Clough v. Thomas, 53 Ind. 24. VI.] NEW PARTIES INTERPLEADER. 119 to the court to be made a party, it may order him to be made a party by the proper amendment."' This clause of the statute is expressly limited to actions for the re- covery of real or personal property. It does not confine the right to be made a party to those who are necessary. If necessary parties, the court would be bound to cause them to be joined under the first clause of the section, but they may, under this provision of the statute, be admitted, if proper parties. They must, however, to be proper par- ties, have some interest in the subject of the action, and their interest, if they ask to be made plaintiffs, must be in unity with the interest of the plaintiffs who are already joined." If they ask to be made defendants, their interest in the subject of the action must be adverse to the plaintiff. And not being necessary parties, the court is not bound to admit them, but may do so in its discretion. 7 INTERPLEADER. 171. The statute. "A defendant against whom an action is pending upon a contract, or for specific real or personal property, may at any time before answer, upon affidavit that a person not a party to the action, and, without collusion with him, makes against him a de- mand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct ; and the court may, in its discretion, make the order." w 172. When party will be substituted by interpleader. This section is intended to take the place of the bill of interpleader in equity. The steps necessary to bring about the substitution of the new party and the discharge of the old are made very simple. The right to ask for the making of a new party rests with the de- fendant alone, and can only be granted upon application. The court is not bound, however, to grant the order substituting the new party in any case. It may be done or not, at the discretion of the court. The right is only given in three classes of cases : 1. In actions on contract ; 2. In actions for specific real property ; and, 3. In actions for specific personal property. The substitution could not be made in every action on contract. It must be a case where the amount due upon the con- (t) K. S. 1881, ? 272. (v) Pomeroy's Remedies, $ 412, 413, (u) K. S. 1881, 262. 414, 415. (w) R. S. 1881,27r,. 120 NEW PARTIES INTERPLEADER. [CHAP. tract is fixed and certain. If there is any controversy between the original parties as to the amount due upon the contract, the original defendant could not be discharged. This is evident, as he must, before he can be discharged, pay the amount due upon the contract into court. 173. How new party substituted. The affidavit required must show: 1. That a person not a party to the suit makes against him a demand for the same debt or property in controversy ; 2. That there is no collusion between him and the party making such demand. The af- fidavit should be filed in the cause, and must be filed before answer.(l) Upon the filing of the affidavit notice must be given to the plaintiff in the action, and the person sought to be substituted as a defendant, that such affidavit has been filed, and that at a time named in the no- tice the defendant will ask for an order substituting the third party as defendant, and discharging the original defendant upon his paying the money sued for into court, or delivering the property sued for to such person as the court may designate. 174. The notice. The statute is extremely indefinite as to the kind of notice and the time it shall be given. It only requires that reasonable notice shall be given. The question whether the time for which the notice is given is reasonable or not must be determined by the court, and must necessarily depend upon the circumstances of each case. The party making the application must give the necessary notice. 175. When original party will be discharged. The original defendant can only be discharged upon paying the money into court or delivering the property to such person as may be designated by the court. The money need not be paid or the property delivered at the time the affidavit is filed, but it must be at the time the application i? made. If the action is for property that can not be brought into court the order substituting the new party should designate some person to whom the property is to be delivered, and order the discharge of the original party and the substitution of the new upon the delivery of the property to such person. (1) For forms of complaint, and affidavit for interpleader, see vol. 3, pp. 181, 332, 333. VIL] CIVIL ACTIONS. 121 CHAPTER VII. CIVIL ACTIONS. SECTION. SECTION 176. The statute. 178. The authorities. 177. Construction of the statute. 176. The statute. Having considered the question of parties, we pass to that of actions. The first section of the code provides : " Sec- tion 249. There shall be no distinction in pleading and practice be- tween actions at law and suits in equity, and there shall be but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action." a This section of the code was amended by the revision of 1881. As it originally stood, it expressly abolished all distinction between actions at law and suits in equity. It now provides that there shall be no dis- tinction between the two. The section is the same, but its meaning is expressed in different words. As the section had stood for nearly thirty years, and its construction had been considered in a multitude of cases, the change in the wording of the section may be considered as of doubt- ful propriety. 177. Construction of the statute. This section may properly be divided into two parts. The first abolishes all distinction in prac- tice between actions at law and suits in equity. This clause has noth- ing to do with such proceedings in court as ai'e denominated " special proceedings." It has been given its full force by the courts of the state, and all actions that were before its enactment, either common- law actions or suits in equity, are held to be the same under the statute, so far as practice and pleading are concerned, all distinctions between them being abolished. b The statute does not affect the remedy in either common-law or equitable actions, but only the form of the pleading by which the remedy shall be obtained. The same facts that would have entitled a (a) R. S. 1881, 249. Indiana, etc., R. R. Co. r. Williams, 22 (b) Scott v. Crawford. 12 Ind. 410; Ind. 198; Ewing v. Ewin^, 24 Ind. Shaw v. Gallager, 8 Ind. 2-32; The 468; Troost v. Davis, 31 Ind. 34, 38. 122 CIVIL ACTIONS. [CHAP. plaintiff to recover at common law will entitle him to recover under the code, but, as we shall see when we come to consider the question of pleadings, his remedy does not depend upon the/ori of his complaint or the name by which his action is called. He is entitled to just such relief as the facts stated in his complaint entitle him, whether the re- lief be legal or equitable. The second clause of the section has given rise to much confusion. It provides that " there shall be in this state hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action" This language is in no way limited, like the first part of the section, to common -law actions and suits in equity, but applies equally to " special proceedings," whatever they may be. So far as the mere question of pleading is concerned the statute has been liberally con- strued in practice, but in determining the rights of parties to demand a jury, or a change of venue, or to recover costs, rights that are only given in " civil actions," the courts of this state have not given the words of the statute this liberal construction. It would seem clear from the language used that there could be but two forms of action, civil and criminal, and that all such actions as were not criminal must necessarily fall under the denomination, "civil action," but the su- preme court has held otherwise. In the case of the Lake Erie, Wabash, and St. Louis R. Co. v. Heath, 9 Ind. 558, the court, after quoting the provision of the con- stitution " that in all civil cases the right of trial by jury shall re- main inviolate," say: "The above provision in our own constitution applies in terms but to civil cases. WJiat then, ivithin its meaning is a civil case? Not every case which is not a criminal case is a civil one. 'Civil case' had a definition, a meaning at common law when the early constitutions of this country were formed; and it lias been held that the term was used in those constitutions in the common-law sensed " It may be fairly argued that the term should be construed in our constitution to embrace such as were treated as civil cases in this state when the constitution was adopted, and such has been the rule acted upon in some of the states. But this rule would not extend the mean- ing of the term so as to embrace legal proceedings in all cases, except criminal . . . Chancery cases, it should be observed, are in the (c) Post, g 341, 351. 45 ; Gold v. The Vermont Central, etc., (d) Citing Millyard v. Hamilton. 7 Co., 19 Yt. 478: Wells v. Caldwell, 1 Ohio (pt. 2), 112; Livingston v. The A. K. Marsh. (Ky.) 441; Harris v. Mayor, etc., 8 Wend. 85; Beekman v. Wood, 6 Mon. 641. The Saratoga, etc., K. R. Co., 3 Paige, vn.] CIVIL ACTIONS. 123 system of practice provided for by the new constitution, e'xpressly merged in the class of civil actions." 8 In most of the numerous cases cited in the foot note, the question as to what was meant by the term "civil action" arose under the constitutional provision that the right of trial by jury shall remain in-" violate in civil cases. The question as to the effect of the statute in extending the meaning of the term was not in question and not con- sidered. The supreme court has uniformly held that to deny a party f the right to a trial by jury in a proceeding that was not a civil case at the time the constitution was adopted, was not a violation of the con- stitution. The reason given is that in guaranteeing the right of trial by jury in civil cases, the constitution must be construed to mean only such as were civil cases at the time of its adoption, and not such as might be made so afterwards by statute. The legislature has the right, undoubtedly, to extend the meaning of the term civil actions so as to include such as were not so denominated at the time the constitution was adopted, but the position taken is that the enlargement of the meaning of the term used by the constitution can not have the effect to enlarge or extend the meaning of the constitution. In Allen v. Anderson, 57 Ind. 388, in speaking of this constitutional provision, the supreme court say: " This provision of the constitution was adopted in reference to the common-law right of trial by jury, as the language plainly imports, namely, that the right shall remain inviolate ; that is, continue as it was. The words, ' in all civil actions,' mean in all civil actions at the common law, as debt, covenant, assumpsit, trover, replevin, tres- pass, action on the case, etc. In chancery cases, or suits in equity, to which the present action would have belonged at the time the constitu- tion was adopted, and before our present code of procedure was enacted, trial by jury, as a right, did not exist. Issues of fact, in such cases, were sometimes sent to a jury for trial, to inform the conscience of the chancellor, as the legal phrase ran ; but trial by jury, before the chan- cellor, was not a right that either party could demand. There are (e) The Lake Erie, etc., K. R. Co. v. kett, 26 Ind. 53; The Evansville, etc., Heath, 9 Ind. 558; Dronberger v. Reed, R. R. Co. v. Miller, 30 Ind. 209; Reil- 11 Ind. 420; Clnm v. Dunham, 14 Ind. ley v. Cavanaugh, 32 Ind. 214 ; Gamer 263; Shaw v. Kent, 11 Ind. 80; Knox v. Gordon, 41 Ind. 92, 101 ; Musselman p. Fesler, 17 Ind. 234; Zimmerman v. v. Musselman, 44 Ind. 106; Allen v. Murchland, 23 Ind. 474; Dillman v. Anderson, 57 Ind. 388; Hopkins v. Cox, 23 Ind. 440; Baker v. Gordon, 23 The Greensburg, etc., Turnpike Co., Ind. 204, 209; Ewing v. Ewing, 24 4*3 Ind. 187; Hymes v. Aydelott, 26 Ind. 468; Morse v. Morse, 25 Ind. 156; Ind. 431; Busk. Prac. 117; Ex parte The Norristown Turnpike Co. v. Bur- "Walls, 73 Ind. 95. CIVIL ACTIONS. [CHAP, many cases, of course, besides common-law civil cases, in which the right of trial by jury is granted by statute, but the case before us is not of that class." It is not the intention now to consider the right of trial by jury far- ther than is necessary in the attempt to arrive at the meaning of the terra " civijjiction/' It is clearly established that the term used iii the constitution is the common-law civil action, but it is evident enough that the constitution means one thing and the statute another. It can not be said that the statute, in using the term " civil action," meaus the common-law civil action, for this would deprive the statute of all force. The very object of the statute, expressed in plain and unam- biguous words, was to include within the term " civil action" every form of action "for the enforcement or protection of private rights, and the redress of private wrongs." It would be difficult to conceive of an action that would not fall within this definition of a civil action. If the party failed to show a right to be enforced, or a wrong to be re- dressed, he would have no right of action, legal, equitable, or special, and could not recover in any form. If he has any right of action, no matter what, it must fall within the statutory definition of a " civil action." It is claimed that the statute does not include in the term " civil action" what were known before the enactment of the code as " special proceedings." This may be regarded as established, so far as the constitution is concerned, but it is not true of the statute. The con- stitution does not include suits in equity any more than it does special proceedings/ But it would hardly be contended that suits in equity are not in- cluded in the statutory definition of the term " civil action." In some of the decided cases in this state the difference between the constitutional and statutory civil action, that so clearly exists, has been entirely overlooked. In the case of Garner v. Gordon, 41 Ind. 92, it is said : " The first question presented for our decision is, was the appellant entitled to a change of venue? The solution of this question depends upon whether the proceeding by habeas corpus is a civil proceeding within the meaning of section 207 (2 G. & H. 154). That section gives a right to a change of venue of any ' civil action.' It was held by this court, in Baker v. Gordon, 23 Ind. 204, that a proceeding by habeas corpus is not a civil case within the meaning of section 20 of the bill of rights, and that, consequently, such proceeding had to be tried by the court and not by a jury. We are inclined to adhere to such ruling. We think it is equally dear tiiat (f) Allen v. Anderson, 57 Ind. 388; Hopkins r. The Greensburg, etc., Tp. Co., 46 Ind. 187, 194. VII.] CIVIL ACTIONS. 125 the proceeding under consideration is not a civil action within the meaning of the above section of tlie code ivhich gives the right to a cliange of venue." It was held in the same case, for the same reason, that there Avas no error in refusing the appellant a jury. In order to show that the court Avas wrong in its ruling that a pro- ceeding by habeas coiyms is not a civil action " within the meaning of the code" it is only necessary to call attention to the reason given, in other cases, by the same court, for holding that the constitution means a common-law civil action. The reason given is that at the time the con- stitution was adopted the term civil action had a fixed meaning, and the constitution must be construed with reference to that meaning. The same reason applied to the code proves that the meaning there in- tended was the meaning given the term by the statute. The great difficulty has been that the code has not, in many cases, been con- sidered and treated as one entire system, but the particular section in question has been considered alone. If the section granting changes of venue in civil cases were to be construed alone in connection with the constitution, the conclusion reached in this case would' be supported by reason and authority ; but it should not be so treated. The section authorizing a change of venue in civil actions must be un- derstood to mean the civil action as defined in the code of which it forms a part/ 1 ) There is absolutely no reason for holding that this sec- tion means a common-law civil action when a preceding section abol- ishes the distinction between such civil action and suits in equity, and brings within the term civil action all actions for the " enforcement or protection of private rights or the redress of private wrongs." Can it be that a proceeding by Jiabeas corpus is neither an action for the en- forcement or protection of a private right nor the redress of a private wrong? If it is, it is a civil action within the meaning of the first section of the code, and the succeeding sections in speaking of a civil action must mean the civil action as defined in the code, unless a dif- ferent meaning is expressed/ 1 ) The reasonings of the cases fixing the meaning of the constitution are clearly to this effect. g It seems clear that cases holding that the term civil action as used in the code means the common-law civil action, have overlooked entirely the object and purpose of the code, and are in violation of its puiin terms. The case quoted from is not the only one, however, in which the same position is taken. h (g) The Lake Erie, etc., K. K. Co. v. (I) Since the text was written it has Heath, 9 Ind. 558; The Norristown, been so decided by the Supreme Court, etc., Turnpike Co v. Burkett, 26 Ind. Powell v. Powell, 104 Ind. 18; Evans 63, 61; Cooley's Const. Lim. 74, 75, 76; v. Evans, 105 Ind. 204; Bass v. Elliott, Smith Com. 630, 482. 105 Ind. 517; Anderson v. Caldwell, 91 (h) Ewing v. Ewing, 24 Ind. 468; Ind. 451. Musselman v. Musselman, 44 Ind. 106, 111; Knox v. Fesler, 17 Ind. 254. 126 CIVIL ACTIONS. [CHAP. In some of the cases special proceedings are spoken of, and it is held that such proceedings are not governed by the code. The only reason that can be given for designating any judicial proceeding as a special proceeding is that the right of action is given by a special statute, and not by the code. No such thing is known in the code as a " special proceeding." If what might have been called special proceedings be- fore the adoption of the code are not included in the statutory defini- tion of a civil action, there is no rule of pleading or practice that can be applied to them. Our practice and pleading are governed exclu- sively by the code, and the statute affords no rules of practice or pleading in special proceedings. Mr. Bicknell, in his work on Indiana Practice, says: "Although the code establishes a single form of action, yet certain ' special pro- ceedings ' are authorized by the code which are not regarded as civil actions."' The author does not attempt to show what are special proceedings or how they are authorized by the code. The only provision in the code, as it then stood, relating to special proceedings, was that " the party procuring a special proceeding shall be known as the plaintiff, and the adverse party as the defendant. "J The learned author says this would be superfluous if special proceed- ings were civil actions, which is undoubtedly true. It was superfluous because the section itself did not authorize a special proceeding, and there is no other provision of the code that authorizes or defines any such proceeding, or that has any connection with this section in any way. This was the only mention that was made of a special proceed- ing in the code, and this section is repealed by the act of 1881 revising the code. I have attempted to show that the statutory definition of a civil ac- tion must cover every conceivable cause of action to which a party cou ld become entitled, hence there would be no room or occasion for a special proceeding, and I believe none is authorized or was ever intended by the code. The New York code differs from ours in this respect. It defines a special proceeding. After giving the definition of an " action," as set out in the code of that state, a special proceeding is defined to be " every other prosecution." k A very comprehensive definition, if the definition of a civil action did not cover every kind of civil remedy. It is evident that the framers of the Indiana code understood the definition of a civil action (i) Bicknell's Pr., p. 5. (k) N. Y. Code, g 3333, 3334. (j) 2 R. S. 1876, p. 281, 682. VII.] CIVIL ACTIONS. 127 to be broad enough to cover all remedies, as the section relating to special proceedings is omitted in adopting the New York code. Notwith- standing the New York code defines a special proceeding, perhaps to cover a possible case, it, in the next section, provides that "actions are of two kinds, civil and criminal." Section 3336 defines a criminal ac- tion, and section 3337 provides that " every other is a civil action." ' One might very well ask what has become of the special proceeding under these two definitions of criminal and civil actions. None of these definitions are given in the Indiana code. The whole tenor of the code shows an intention to include in the term civil action every action not criminal. The right to a change of venue is given in civil cases. m And the right to recover cost." And the right of appeal under the old code. The right to arrest a defendant is authorized in civil actions. p And the right of attachment under the old code was given in an " action. ". Powell, 104 Ind. 18. et seq. 9 130 CIVIL ACTIONS. [CHAP. the opinion of the particular judge who may be called upon to decide the point. If the supreme court has decided that the proceeding is special, the lower courts must be governed by that decision, but if the exact case under consideration has not been before the supreme court, the statute does not aid the court or the attorney in determining whether it is a special proceeding or not, if it is believed the case does not fall within the general code definition of a civil action. The statute contains no definition of a special proceeding, evidently because it was the inten- tion that there should be no such thing in practice. Our code differs in this respect from some of the codes of other states. We have al- ready shown this to be the case, with New York. In California they have, under their practice act, three classes of remedies, viz. : 1. Ac- tions. 2. Special proceedings. 3. Provisional remedies. Mr. Estee defines special proceedings to be : " Remedies pursued by a party, and which do not result directly in a final judgment, but only in establishing a right or some particular fact." h An examination of the cases in this state which hold certain pro- ceedings to be special will disclose the fact that not one of them falls within this definition, and none of the cases attempt to define a special proceeding. Outside of the mere statement that the particular pro- ceeding before the court is a special proceeding, or is not a civil case, the cases are not authority. This leaves the profession without any guide in determining what is a special proceeding, except in proceed- ings precisely like those passed upon by the court. (h) Estee's PI. and Forms, p. 5, 21. vni.] ACTIONS. \VHERE COMMENCED. 131 CHAPTER VIII. ACTIONS, WHERE COMMENCED. SECTION . 1. ACTIONS THAT MUST BE COM- MENCED WHERE THE SUBJECT OF THE ACTION IS SITUATE. 179. The statute. 180. Actions for specific performance of contracts to convey real es- tate. 181. To set aside fraudulent convey- ances of real estate. 182. To foreclose mortgages. 183. For injury to real estate. 184. Where real estate is situate in more than one county, suit may be brought in either. 185. Counterclaim. 186. For breach of covenant. 2. ACTIONS THAT MUST BE BROUGHT IN THE COUNTY WHERE THE CAUSE OF ACTION AROSE. 187. The statute. 188. Construction of the statute. 3. ACTIONS AGAINST CORPORATIONS. 189. The statute. 190. Construction of section 309. SECTION. 4. ACTIONS FOR INJURIES TO PERSON OR PROPERTY, AND UPON A LIA- BILITY AS COMMON CARRIERS. 191. The statute. 192. Construction of the statute. 5. AGAINST FOREIGN CORPORATIONS. 193. In any county where money or effects belonging to or due com- pany may be found. 6. TO CONTEST OR ESTABLISH WILLS. 194. In county where will should be probated. 7. ACTIONS THAT MUST BE BROUGHT IN THE COUNTY WHERE ONE OF THE DEFENDANTS RESIDES. 195. The statute. 196. Construction of the statute. 8. ON BILLS AND NOTES. 197. In county where one of the mak- ers, drawers, or acceptors re- sides. 198. Attachment proceedings. 199. Capias ad respondendum. 200. Actions in replevin. 201. Petition to sell real estate, by ad- ministrator. 202. Non-residents. I. ACTIONS THAT MUST BE COMMENCED IN THE COUNTY WHERE THE SUBJECT OF THE ACTION IS SITUATE. 179. The statute. "Actions for the following causes must be commenced in the county in which the subject of the action or some part thereof is situated : "First. For the recovery of real property or of an estate or interest therein, or for the determination, in any form, of such right rr interest, and for injury to real property. 132 ACTIONS, WHERE COMMENCED. [CHAP. "Second. For the partition of real property. "Third. For the foreclosure of a mortgage of real property. " a 180. Actions for specific performance of contracts to con- vey real estate. The different causes of action that must be com- menced in the county where the subject of the action or some part of it is situate, seems to be very clearly stated in the statute, but it has sometimes become a question whether the cause of action brought op- erated upon the real estate or upon the person -of the defendant. If the former, the action is properly brought in the county where the subject-matter is situate ; if the latter, the action is transitory, and must be brought in the county where the defendants, or some of them, reside. b It was held, in an early case, before the enactment of the code, that an action for specific performance of a contract to convey real estate operated upon the person of the defendant, and might be brought in the county where the defendant resided. 6 After the enactment of the present statute, it was held that the case of Coon v. Cook was not good law under the statute, and that the suit must be brought in the county where the real estate was situate.* 1 It is difficult to see why the rule laid down in the former case is not as applicable under the code as it was before. The case decides, in ex- press terms, that the action for specific performance operates upon the person. This position is not controverted in the later case. If such is the law, the statute does not require that the action should be brought in the county where the real estate is situate. It is clearly true that the action for specific performance is not to recover real estate or any estate or interest therein. It is only under that clause requiring an action for the determination in any form of such right or interest to be brought in the county where the land is situate, that it could be held that the action must be brought in such county. The court does not point out any change made by the statute, or give any reason for hold- ing that the earlier case is not in point. In the very next volume of our Reports it is held that the action need not be brought in the county where the real estate is situate, but is transitory, and follows the person of the defendant. 6 The case of Coon v. Cook, is cited as decisive of the question. The case of Parker V. McAlister, a much later case, holding directly the other way, is not referred to or noticed by the court In the case of (a) B S. 1881, 307. (d) Parker v. McAlister, 14 Ind. 12. (b) McManus v. Bush, 48 Tnd. 303. (e) Dehart r. Dehart, 15 Ind. 167. (c) Coon v. Cook. 6 Tnd. 208. Yin.] ACTIONS, WHERE COMMENCED. 133 Vail v. Jones, 31 Ind. 467, this question was again presented to the supreme court, and it was held that under the code the action must be brought in the county where the real estate is situate, and Parker v. McAlister is cited as authority. The later case of Dehart v. Dehart, holding the other way, is not noticed/ As we have four decisions directly on this point, two each way, it would be difficult to lay down any rule as settled in this state, but as the last case is to the effect that the statute requires the action to be brought in the county where the land is situate, it would be safer to follow this rule. But the question as to which of these conflicting de- cisions is right is not free from doubt. It is clear enough that the action operates upon the person of the defendant and not upon the real estate, as held in Coon v. Cook, but the statute seems to extend further than to such actions as operate directly upon the real estate. It not only requires that actions for the recovery of real estate, or any interest therein, shall be brought in the county where the real es- tate is situate, but all actions for the determination in any form of such right or interest. The action for specific performance may fall within the terms of this statute, but it is not at all clear that it does. If the action is one to determine a right or interest in real estate, it must, by the express terms of the statute, be brought in the county where the real estate is situate. While it is said that the 'action oper- ates upon the person of the defendant, the judgment or decree author- ized in this class of actions, can not properly be called a personal judgment. The reason for bringing the action is that a personal judg- ment against the vendor would be an inadequate remedy. It has been held in several cases that an action for specific perform- ance is not within the statute authorizing new trials, as of right upon payment of cost, on the ground that it is not an action for the recovery of or to determine and quiet the question of title, 8 In the case of Benner v. Benner, the court say: "In order to test the correctness of the decision of the court below, it is necessary to de- termine, as nearly as may be, the precise character of this action, and thereby ascertain whether it comes within either section 592 or section 611, h for if not, section 601 ' is not applicable to it. It is claimed that this is a suit, by the plaintiff below, as a cestui que trust against the defendant as trustee, to determine and quiet the ques- tion of title to the property held in trust, and, therefore, that it is (f) Loeb v. Mathis, 37 Ind. 306. 25 Ind. 271; McFerrin v. McFerrin, (g) K. S. 1881, $ 1050, 1070; Ben- 69 Ind. 29. ner v. Benner, 10 Ind. 256; Allen v. (h) R. S. 1881, 1050, 1070. Davidson. 16 Ind. 416; Walker v. Cox, (i) E. S. 1881, 1064. 134 ACTIONS, WHERE COMMENCED. [CHAP. within the above provision and to be governed by section 611 above quoted. But we do not think the case falls within either of the pro- visions above quoted. The substratum of the case is the title bond set forth in the complaint, and without it no cause of action whatever is found in the complaint. ... It sets up the bond or agreement executed in consideration of the trust, and prays a specific performance of the agreement, which is adjudged by the court on payment of the money mentioned in the bond and the interest, and we think it is a case simply for the specific performance of a contract. It is evident that the statute above quoted does not embrace cases of specific per- formance merely, and it follows that the court below committed no error in overruling the motion." It would seem that if the action for specific performance was so far an action to determine a right or interest in real estate as to bring it within the statute requiring such actions to be brought in the county where the land is situate, that it would fall within the other statute au- thorizing a new trial without cause, but the decisions, as already shown, are the other way. This question of the proper place to bring the action can not be regarded as settled, except so far as that the last case requires the suit to be brought in the county where the land is situate. 181. To set aside fraudulent conveyances of real estate. Actions to set aside fraudulent conveyances are held to be within the statute, and therefore such suits must be brought in the county where the real estate is situated A difficulty might arise in this class of cases, as also in actions to foreclose mortgages, where, in addition to the setting aside of the deed, or the foreclosure of the mortgage, a personal judgment is claimed against the defendants or a part of them. The plaintiff, in an action to set aside a deed, may, in the same action, recover a personal judg- ment for his debt. k One of these actions is local, the other transitory, and the parties to the actions are different. So far as the action is for the recovery of a personal judgment, it affects the debtor alone, but the action to set aside the conveyance affects the defendant, to whom the conveyance is made, he being a necessary party defendant. If the defendant, against whom a personal judgment is sought, does not reside in the county where the real estate is situate, can he be compelled to defend (j) The New Albany, etc., K. K. Co. (k) Love v. Mikals, 11 Ind. 227; v. Huff, 19 Ind. 444; Yail v. Jones, 31 Iglehart's Prac., p. 40, \\ 34, 35. Ind. 467. VIII.] ACTIONS, WHERE COMMENCED. 135 the personal action in another county, in which the court would have no jurisdiction if the personal action were brought alone, because of the fact that the action is joined with another to set aside the conveyance ? I am not aware that the question has been settled directly or indirectly by the supreme court. It is well settled that in an ordinary proceed- ing the court must have jurisdiction of the person of the defendant, as well as the subject-matter of the action, or any judgment that may be rendered will be absolutely void. 1 But here the court has jurisdiction of the subject-matter, so far, at least, as the action to set aside the fraudulent conveyance is concerned, and jurisdiction of the person of the defendant, if properly served with process, so far as that issue is concerned ; but the court would have no jurisdiction of the person of the defendant for the purposes of the personal action, if that action stood alone. If the plaintiff can thus join the two actions, under such circumstances, and when the ju- risdiction of the person is acquired for one purpose, the court acquires jurisdiction for all the purposes of the action, the debtor may thus be compelled to defend the personal action out of his county, and have judgment against him out of the county, if defeated. There might be a finding against him in the personal action, and a finding in his favor in the action to set aside the conveyance. In such case, it would be clear that no valid personal judgment could be rendered against him for the reason that the judgment of the court would show that there was no such cause of action as would give the court jurisdiction. The rule that an action for a personal judgment may be joined with one to set aside a fraudulent conveyance where the parties to the two causes of action must necessarily be different, and a different judgment must be rendered against each, is carrying the right to join different causes of action beyond all precedent and reason, and, where the two causes of action require different places of trial, it is believed the two can not be properly joined, thus giving the court jurisdiction over one cause of action that it could not otherwise have. m 182. To foreclose mortgages. In actions to foreclose mortgages the party has the right to recover judgment on the notes, if any, and a decree foreclosing the mortgage in the same action, and, therefore, they may be properly brought in the county where the real estate is situate, and the personal judgment may be there rendered; but in this (1) Kyle v. Kyle, 55 Ind. 387 ; Pack- (m) Iglebart's Prac., p. 40, ? 34, 35; ard v. Mendenhall, 42 Ind. 598; Haw- Freeman on Judgments, \ 143. kins v. Hawkins, 28 Ind. 66. 136 ACTIONS, WHERE COMMENCED. [CHAP. class of eases jurisdiction of the person of the defendant against whom personal judgment is sought, whether he be the maker of the note or a party who has assumed the payment of the debt, can only be ac- quired by personal service of process upon him. n The joinder of the action for personal judgment, and to foreclose the mortgage, is quite different from the joinder of actions to set aside a fraudulent deed and to recover judgment for the debt. The mort- gage is but an incident to the personal indebtedness, and a right to re- cover the debt must be shown, or the mortgage can not be foreclosed. But it is not necessary that a personal judgment should actually be recovered. Although the debt is the principal thing, and the mort- gage its mere incident, the mortgage may be foreclosed where the party personally liable for the debt is not before the court by personal service. The court may, in such case, obtain jurisdiction of the subject-matter of the action by constructive notice to the parties, and if the right to recover the debt is shown, a decree of foreclosure may be rendered. For the purposes of such foreclosure the court has jurisdiction to render a decree by virtue of such constructive notice, and the defendant will be bound by the decree, although a personal judgment against him on such notice would be absolutely void. p 183. For injury to real estate. Actions for injury to real estate, although the action operates upon the person of the defendant, are re- quired by the express terms of the statute to be brought in the county where the real estate is situate. q 184. Where real estate is situate in more than one county suit may brought in either. Where an action affects real estate in more than one county, the suit may be brought in either county ; but it has been field that, when suit is brought to set aside a conveyance of real estate lying in two counties, but the sole object of the action is to reach and affect that part of the real estate lying in one county only, the suit must be brought in that county, and that the fact that the conveyance covers the whole of the real estate in both counties can not affect the question/ (n) Kyle v. Kyle, 55 Ind. 387 ; Ire- (p) Mitchell v. Gray, 18 Ind. 123; land v. Webber, 27 Ind. 256; Beard v. Iglehart's Prao., p. 95, 7; Gibson v. Beard, 21 Ind. 021 ; Mitchell v. Gray, Green, "2'2 Ind. 42; Truitt v. Truitt, 18 Ind. 123; Allen v. Cox, 11 Ind. 383. 38 Ind. 16. (o) Trayser v. The Trustees of As- (q) Loeb v. Mathis, 37 Ind. 306. bury University, 39 Ind. 556; Connell (r) The New Albany, etc., R. K. Co. v. Clifford. 45 Ind. 392; Brick v. Scott, v. Huff, 19 Ind. 444. 47 Ind. 299; Greenman v. Fox, 54 Ind. 267. VHI.] ACTIONS, WHERE COMMENCED. 137 185. Counterclaim. The question has been presented to the su- preme court, whether, in case an action is properly brought in one county, the defendant may, by way of counterclaim or otherwise, set up as a defense to the action such matter as would give him a cause of action against the plaintiff, and, if brought by him, must have been instituted in another county. The facts shown in the case were these : A. brought his action against B. in Dearborn county on a note. B. set up, by way of answer, that he had executed to the plaintiff a deed for lands in Jasper county, abso- lute on its face, but intended as a mortgage to secure the note sued on ; that the plaintiff held possession of the real estate, and refused to sur- render possession on payment of the note. The jury found for the de- fendant that the deed was intended as a mortgage, and judgment was rendered accordingly, but the court below arrested the judgment on the ground that the court had no jurisdiction to try the question of the title to real estate in another county. It was held by the supreme court, Elliot, J., dissenting, that, although the court of Dearborn county would have no jurisdiction of the mat- ters set up in the answer if suit had been brought therefor in that county, the court had such jurisdiction when presented by way of an- swer." 8 186. For breach of covenant. It has been held that an action for the breach of a covenant in a deed of conveyance of real estate is not local, but must be brought in the county where the defendant re- sides. 1 2. ACTIONS THAT MUST BE BROUGHT IN THE COUNTY WHERE THE CAUSE OF ACTION AROSE. 187. The statute. The statute names two classes of actions that must be brought in the county where the cause or some part thereof arose. Firzt. For the recovery of a penalty or forfeiture imposed by stat- ute, except when imposed for an offense committed on a lake or river or other stream of water situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offense was committed. Second. Against a public officer or person specially appointed to exe- cute his duties for an act done by him in virtue of his office, or against a person who, by his command, or his aid, shall do any thing touching the duties of such officer. (s) Vail v. Jones, 31 Ind. 467. (u) K S. 1881, 308. (tj Coleman v. Lyman, 42 Ind. 289. 138 ACTIONS, WHERE COMMENCED. [CHAP. 188. Construction of the statute. The first clause of this sec- tion is very general in its terms, and, so far as I know, it has received no construction at the hands of the supreme court. Two causes of ac- tion may accrue on account of the doing or the omission to do an act for which a penalty is imposed by the statute. One of these may be for the penalty imposed ; another an action for damages, without refer- ence to the statute, 7 and, in some cases, where the act is done by a public officer, he and his sureties may be sued on his bond. In the case of a sheriff, the statute provides that if he shall fail to levy an execution and sell property justly liable to execution, or shall neglect or refuse to return any execution, as required by law, or shall neglect or refuse, on demand, to pay over any money collected on execution, he shall be amerced in the amount of the property that should have been levied upon or the money not paid over. w And in addition, the plaintiff shall recover of the officer legal interest and damages not exceeding ten per cent. The amount to be recovered, as provided by this statute, is very clearly a penalty ; x and if the action is brought against the sheriff alone, to recover the amount thus fixed by the statute, it must be com- menced in the county where the cause of action arose. The same would be the rule if brought against the sheriff, under the second clause of the section, " for an act done by virtue of his office." It is very doubtful whether any action could be maintained under this latter ciause, however, for the mere omission of a public officer, as the statute applies, in terms only, to " acts done by him." The statute fixing the penalty against the sheriff, as above stated, provides that the recovery may be had by motion against the officer in the proper court, or by action on the bond of the sheriff. 7 If the recovery is had by motion, it would seem to be necessary that the motion should be made in the court from which the execution issued. If so, and the execution were issued to the sheriff of an- other county, and should have been levied upon property there, the cause of action for the failure to levy would arise in that county, and the right to institute the action in the county, from which the exe- cution issued, would not exist under section 308. Then in what county can such a proceeding be instituted by motion, where the exe- cution issues, from one county to the sheriff of another? The section authorizing the motion does not require that it shall be made in the (v) Stevens v. Beckes, 3 Blkf. 88; (w) R. S. 1881, ? 783, 784, 785, 786. Baker v. Mortimer, 5 Blkf. 32 ; West- (x) Williams r. The State, 5 InA ern Union Telegraph Co. v. Axtel, 69 235. Ind. 199. (y) K. S. 1881, 787. Vni.] ACTIONS, WHERE COMMENCED. 139 court from which the execution issued but from the "proper court." It is evident, however, that the proper court must be the one in which the judgment was recovered and from which the execution issued. 2 The statute authorizes an action on the bond of the sheriff in such cases. a And the action on the bond would be properly brought in the county where the officer resides, under section 312. 3. ACTIONS AGAINST CORPORATIONS. 189. The statute. " When a corporation, company or an indi- vidual has an office or agency in any county, for the transaction of business, any action growing out of or connected with the business of such office, may be brought in the county Avhere the office or agency is located, at the option of the plaintiff, as though the principal resided therein, and service upon any agent or clerk employed in the office or agency, shall be sufficient service upon the principal ; or process may be sent to any county and served on the principal." b 190. Construction of section 309. It will be noticed that this section is not limited to corporations, but applies equally to any com- pany or individual who has an office or agency in any county for the transaction of business. The right to sue under this section, however, is expressly limited to actions " growing out of or connected with such business." It has been held, therefore, that an action against a railroad company, for injury to stock by the cars of the company, can not be maintained under this section. 4. ACTIONS FOR INJURIES TO PERSONS OR PROPERTY, AND UPON A LIABILITY AS COMMON CARRIERS. 191. The statute. The statute, section 311, provides that "an action against a railroad or canal corporation or company, or owner of a line of stages or coaches, for an injury to person or property upon the railroad, canal, or line of stages or coaches of the defendant, or upon a liability as a carrier, may be brought in any county through or into which such railroad, canal, or line of stages or coaches passes. " d 192. Construction of the statute. This section covers two (zj Dawson v. Shaver, 1 Blkf. 204. The State, 10 Ind. 58; Davis v. The (a) The State v. Youmans, 1 Ind. State, 44 Ind. 38. W; Bagot v. The State, 33 Ind. 262; (b) R. S. 1881, 309. The State v. Spencer, 4 Blkf. 310; The (c) The Toledo, etc., R. R. Co. tx State v. Hamilton, 32 Ind. 104; The Owen, 43 Ind. 405. State v. Guard, 6 Blkf. 519; Collier v. (d) R. S. 1881, 311. 140 ACTIONS, WHERE COMMENCED. [CHAP. classes of cases: 1. Actions for injuries to person or property; 2. Actions upon liabilities as carriers. In either case the action may be brought in any county through or into which the railroad, canal, or stage line passes, without reference to the question whether the company has an office or agency in the county or not. Under either sections 309 or 311, the action may be brought in the county where the principal resides. 6 But it has-been held that this section only applies to the com- mon-law liability for injury to property, and that under the statute provid ing a special remedy for such injury, the action must be brought in the county where the injury was done. f In the case of the Toledo, etc., R. Co. v. Milligan, the supreme court say : "As we have seen, the first paragraph of the complaint is based on the statute which gives a new and extraordinary remedy, and declares that the action must be commenced in the county where the animal is killed or injured. That paragraph failed to allege where the animals were killed or injured, and, therefore, would have been bad on demurrer. "The second and third paragraphs of the complaint proceed on the common-law liability, and were transitory actions, and might be brought in any county through which the road passed." 5. AGAINST FOREIGN CORPORATIONS. 193. In any county where money or effects belonging to or due company may be found. In the case of foreign corporations the action may be brought in any county within the state where any prop- erty, money, credits, or effects belonging or due to the corporation may be found, and a foreign corporation under this statute is one created by or under the laws of any other state, government, or country. 8 6. TO CONTEST OR ESTABLISH WILLS. 194. In county where will should be probated. Actions to contest or establish wills must be brought in the county in which the will, if valid, ought according to law to be proved and recorded. 11 (e) The Indiana Mutual Fire In?, etc., R. R. Co. v. Kenner, 17 Ind. 135; Co. tj.Tlutledse, 7 Ind. 25; The New The Indianapolis, etc., R. R. Co. v. Albany, etc., R. R. Co. v. Haskell, 11 Solomon, 23 Ind. 534; Jolly v. Gher- Ind. 301. ing, 40 Ind. 139. (f) R. S. 1881, 4026; The Toledo, (g) R. S. 1881, 313. etc-., R. R. Co. v. Milligan, 52 Ind. 505; (h) R. S. 1881, 310, 2580; Igle- The Indianapolis, etc., R. R. Co. v. hart's Prac., p. 80, 11. Wilsey, 20 Ind. 229 ; The Indianapolis, Vni.] ACTIONS, WHERE COMMENCED. . 141 And wills may be proved and recorded "First. Where the testator immediately previous to his death was an inhabitant of such county. "Second. Where the testator, not being an inhabitant of this state, shall die in such county, leaving assets therein. "Third. Where the testator, not being an inhabitant of this state, shall die out of this state-, leaving assets in such county. "Fourth. Where a testator, not being an inhabitant of this state, shall die out of the state, not leaving assets in such county, but assets of such testator shall come ijato the county thereafter." ' 7. ACTIONS THAT MUST BE BROUGHT IN THE COUNTY WHERE ONE OF THE DEFENDANTS RESIDE/S. 195. The statute. " In all other cases the action shall be com- menced in the county where the defendants, or one of them, has his usual place of residence. Where there are several defendants residing in different counties, the action may be brought in any county where either defendant resides, and a separate summons may be issued to any other county where the other defendants may be found ; and in cases of non-residents or persons having no permanent residence in the state, action may be commenced and process served in any county where they may be found. But any action brought by the assignee of a claim arising out of contract, whether assigned in writing or by de- livery, shall be commenced in the county where one or more of the parties immediately liable to judgment and execution reside, and not elsewhere."- 1 If the action does not fall within the five preceding sections already considered, the place of bringing the action must be governed by sec- tion 312. 196. Construction of the statute. Where all of the parties re- side in the same county, and the action is purely personal, no question can arise as to the proper place of bringing the suit ; but where the de- fendants reside in different counties, the section makes a distinction be- tween actions on contract and other personal actions, where the action is brought by the assignee. If under this section the original debtor sues, he may bring his action in the county where either defendant re- sides. ON BILLS AND NOTES. 197. In county where one of the makers, drawers, or ac- (i) R. S. 1881, 2580. Evans, 89 Ind.400; ilcCauley v. Mur- (j) R. S. 1881, 312; Shearer v. dock, 97 Ind. 229. 142 ACTIONS, WHERE COMMENCED. [CHAP. ceptors resides. We have another statute, which applies exclu- sively to actions on bills and notes, which provides that the holder of any bill or note may institute one suit against the whole or any num- ber of the parties liable to such holder, but such holder shall not at the same term of court institute more than one suit on such note or bill. k Under this section, as it was originally enacted, there was no limita- tion of the right of the holder to recover against all of the parties, whether originally liable as makers or acceptors or as indorsers, but by an amendment, passed in 1875, it was provided that, in order to re- cover against the makers, drawers, or acceptors, the action must be brought in the county where one of such makers, acceptors, or drawers resided. % The section does not prevent the holder bringing his action in the county where the indorsers or one of them resides, but he can not, in such county, recover a judgment against the maker, drawer, or ac- ceptor. l Prior to the amendment, the supreme court held that the action could be maintained in the county where one of the indorsers resided, and judgment recovered against all of the parties, both under section 312 and section 5516, because the indorser was, under section 312, im- mediately liable to the holder ; and, under section 5516, the right to sue in the county where the indorser resided was expressly given. m But it is otherwise under the amendment, the 'object of which was to prevent the recovery of a judgment against the maker, acceptor, or drawer out of his county. n It must be remembered that this section of the statute applies only to actions on notes or bills. In actions on other assignable contracts, the suit may be brought in the county where the indorser resides, and judgment be there recovered against all the parties immediately liable to the assignee. The question of what contracts are assignable has been considered in. a former chapter. P 198. Attachment proceedings. In attachment proceedings, (k) R. S. 1881, 5516. (n) Morrison v. Fishell, 64 Ind. 177. (1) Acts of 1875, p. 119. (o) McCammock v. Clark, 16 Ind. (m) Keiser v. Yandes, 45 Ind. 174; 320; Ward v. Buell, 11 Ind. 327; Ar- Hall v. Suitt, 39 Ind. 316; Scott v. buckle v. Spaugh, 11 Ind. 372; O'Brien Millard, 10 Ind. 158; Ward v. Buell, v. Flanders, 41 Ind. 486. 11 Ind. 327; Swing; v. Logan, 40 Ind. (p) Ante, 39 et seq. 342; Norvell v. Kittle, 23 Ind. 346. VIII.] ACTIONS, WHERE COMMENCED. 143 the attachment being merely incidental to the main action, must, where the principal defendant is a resident of the state, be brought in the county where he resides, and can not be brought in the county where the property is situate.* 1 And where the action is brought before a justice of the peace, 'it must be brought in the township where the defendant resides/ Where the defendant is a non-resident, the action may be brought in any county in the state. 199. Capias ad respondendum. In actions commenced by capias ad respondendum, before a justice of the peace, the jurisdiction extends over the whole county, and over all persons found in the county, whether they reside therein or in some other county. 8 200. Actions in replevin. In actions in replevin, before jus- tices of the peace, the suit may be brought either in the township where the defendant resides or in the township where the property was unlawfully taken or detained. This has been held on the ground that the unlawful taking or detention of personal property is a trespass, within the meaning of section 1443 of the statute. 1 The rule has been extended even farther than this, the supreme court holding that the action may be brought in any township in the county, without reference to the place of the defendant's residence, whether in or out of the township, or the place of the unlawful taking or deten- tion of the property. 11 The last case decided on the question limits the right to sue to the township where the defendant resides, or where the property was taken or detained, and overrules previous cases. v Two of the cases expressly decide that the action may be brought anywhere in the county. In the circuit court, the action of teplevin must be brought in the county where the defendant resides. w 201. Petition to sell real estate by administrator. It has been held by the supreme court that a petition by an administrator for sale of the real estate of the decedent may be filed in either the county (q) Bobbins v. Alley, 38 Ind. 553. 21 Ind. 303; Nesbit u. Long, 37 Ind. (r) Michael v. Thomas, 24* Ind. 72. 300. (s) Harris v. Knapp, 21 Ind. 198; (u) Beddinger v. Jocelyn, 18 Ind. Miohael v. Thomas, 24 Ind. 72; Gra- 325; Test v. Small, 21 Ind. 127. ham v. Klyla, 29 Ind. 432. (v) Copple v. Lee, 78 Ind. 231 ; Nes- (t) R. S. 1881, 1443; Jocelyn v. bit v. Long, 37 Ind. 300. Barrett, 18 Ind. 128; Cool; r. Gibson, (wl Hodson v. Warner. 60 Ind. 214. 144 ACTIONS, WHERE COMMENCED. [CHAP. where the real estate is situate or in the county where letters of ad- ministration are taken out, and that the court of either county would have jurisdiction ; x and the case of Ex parte Shockley, 14 lud. 413, holding that the court of the county where the letters were issued had exclusive jurisdiction was overruled. But in a still later case it is again held that the court issuiug the letters has exclusive jurisdiction. (1) 202. Non-residents. Where the defendant has no permanent residence in the state, or is a non-resident, he may be sued in any county in the state. 7 (x) Williamson v. Miles, 25 Ind. 55. (y) K. S. 1881, 312; McCauley v. (1) Vail v. Rinehart, 105 Ind. 6. Murdock, 97 Ind. 229, 233. IX.] ACTIONS, HOW COMMENCED. 145 CHAPTER IX. ACTIONS, HOW COMMENCED. SECTION. THE SUMMONS AND PUBLICATION. 203. The statute. 204. What is the commencement of an action. 205. Summons must be made returna- able at first term after its issue. 206. Summons, when returnable be- fore justice of the peace. 207. What summons must contain. 208. When new summons must issue on cross-complaint of surety. 209. Summons must issue on supple- mental complaint. SERVICE OF SUMMONS. 210. The statute. 211. Summons, how served, when de- fendant resides out of the state. 212. Service on infants. HOW SERVED ON CORPORATIONS. 213. The statute. 214. Officers upon whom service may be made. 215. In actions against railroad cor- porations for killing stock. 216. In actions to enforce liens against boats and other water-crafts. 217. In mandamus. 218. In actions against townships. SECTION. HOW DEFECTS IN SERVICE WAIVED. 222. By appearance. 223. Special appearance does not waive defects. 224. What constitutes an appearance. 225. An agreement indorsed on the complaint, waiving process, not an appearance. 226. Appearance may be in person or by attorney. 227. Appearance by attorney, without authority. 228. When attorney's authority to ap- pear can be controverted in a direct proceeding. 229. Some authorities the other way. 230. Effect of the rule. 231. Effect of appearance and attempt to set aside default. 232. Effect of agreement for judgment; appearance at taking deposi- tions; giving special bail. 233. Can be no waiver on the part of an infant. 234. Appearance by agreement before justice of the peace. 235. Party may expressly waive ser- vice of process. 236. On voluntary appearance, may demand continuance, when. PUBLICATION. 219. The statute. SERVICE BY COPY. 237. How made. 220. What must be shown by the affi- 238. Meaning of term "last or usual davit for publication. place of residence." 221. How long publication must be made. PROOF OF SERVICE. 239. The statute. 10 146 ACTIONS, HOW COMMENCED. [CHAP. 240. When service is made by private individual. 241. Proof of service, when made on party out of state. 242. By written acknowledgment of defendant on back of summons. 243. Officer's return must be attached to or indorsed on back of sum- mons. 244. Keturn of officer, when conclusive. 245. Proof of publication. 246. Proof of notice given out of court, 247. What return should show. DEFECTIVE PROCESS. 248. How to proceed in case of defec- tive process or service. 249. Agreed case, when and how com- menced. 203. The statute. "A civil action shall be commenced by filing in the office of the clerk a complaint and causing a summons to issue thereon, and the action shall be deemed to be commenced from the time of issuing the summons ; but, as to those against whom publi- cation is made, from the time of the first publication." 8 204. What is the commencement of an action. The filing of the complaint alone is not the commencement of the action, nor is the issuing of summons without a complaint being filed sufficient. There must be a complaint filed first and a summons issued before the action is commenced. 1 " And the summons is not issued until it is placed in the hands of the sheriff for service. 205. Summons must be made returnable at first term af- ter its issue. The summons must be made returnable at the first term of court after the issuing thereof, otherwise it will be void. d It was otherwise under the statute of 1843, which provided that the summons should be regarded as returnable on the day fixed by law, although the summons was, by its terms, returnable on another day. 6 But an action may be brought before or during the term, and a (a) K. S. 1881, 314. (b) Ramsey v. Foy, 10 Ind. 493; The State v. Clark, 7 Ind. 468; Jerol- aman v. Foster, 28 Ind. 232; Under- wood v. Tatham, 1 Ind. 27G; Hust v. Conn, 12 Ind. 257; Briggs v. Sneghan, 45 Ind 14; Temple v. Irvin, 34 Ind. 412; Hancock v. Ritchie, 11 Ind. 48; Xiblack v. Goodman, 67 Ind. 174; Fordice v. Hardesty, 36 Ind. 23; The Charlestown School Township v. Hay, 74 Ind. 127. (c) Hancock v. Kitchie, 11 Ind. 48; Fordice v. Hardesty, 36 Ind. 23; Evans v. Galloway, 20 Ind. 479; Harshman v. Armstrong, 43 Ind. 126. (d) Briggs v. Sneghan, 45 Ind. 14; Shirley v. Hagar, 3 Blkf. 225; Crocker v. Duncan, 6 Blkf. 535; Carey v. But- ler, 11 Ind. 391 ; Will v. Whitney, 15 Ind. 194; Biggsby v. Bowler, 17 Ind. 167. (e) Whitewater, etc., Canal Co, v. Henderson, 3 Ind. 3. IX.] ACTIONS, HOW COMMENCED. 147 summons issued returnable at a day to be fixed by the plaintiff in such term, and the summons will be valid. f This provision does not apply to divorce cases. (1) And the naming of a wrong day in the term, where the statute makes all summonses returnable on the first day of the term, does not inval- idate the writ. g 206. Summons when returnable before justice of the peace. In actions before justices of the peace, the summons must be made returnable not less than three nor more than thirty days from the issuing. h But in actions against railroad companies for kitting stock, the sum- mons must be made returnable not less than ten days after suit brought. 1 It was provided by the acts of 1861 that, when the principal office of the company was out of the state, the summons must be made return- able not less than fifteen days from its issuing.-* But the supreme court has since held that this act was repealed by the later statute fixing the time at ten days in such cases, thus making the language apply to cases for killing stock instead of railroad cases generally. 11 In computing the time in a leap year, the twenty-eighth and twenty- ninth days of February must each be counted as a day in this statute. 1 In some cases, it has been held that they should be counted as but one day. 207. What summons must contain.C 2 ) The statute provides that, " No summons or the service thereof shall be set aside or be ad- judged insufficient where there is sufficient substance about either to inform the party on whom it may be served that there is an action in- stituted against him in court, ilie name of the plaintiff and the court, and the time wJien he is required to appear. If the language of this statute as it originally stood were given its full force, a summons could hardly be so defective as to be " adjudged insufficient." If the party appears and objects to the summons, it is evident that the summons and its service would have been sufficient to inform him "that there is an action instituted against him in court." But the statute can not be so construed. A summons issued without (f) K. S. 1881, 516; Vol. 3, p. 322. (1) Helpenstein v. The Vincennes (g) Riggsbee v. Bowler, 17 Ind. 167; National Bank, 65 Ind. 582. Morgan v. Woods, 33 Ind. 23. (m) R. S. 1881, 317. The words in (h) R. S. 1881, 2 1451 ; The Michi- italics were added by way of amend- gan, etc., R. R. Co. v. Shannon, 13 Ind. ment, in the Code of 1881. Martin v. 171; The 0. & M. U. R. Co v. Hanna, Cole, 38 Ind. 379; Freeman v. Paul, 16 Ind. 391. 105 Ind. 451. (i) R.S.I 881. 4026; The Michigan, (1) Eastes v. Bastes, 79 Ind. 363; etc., R. R. Co. v. Shannon, 13 Ind. 171. Vol. 3, p. 321. (j) Acts 1861, Spec. Sess., p. 78. (2) Vol. 3, p. 321. Ik) The Toledo, etc., R. R. Co. v. Shively, 26 Ind. 181. 148 ACTIONS, HOW COMMENCED. [CHAP. the seal of the court attached would contain the same information as one properly attested, but the summons in such case would be insuf- ficient. The difference between a summons that is simply irregular or defective in form, and one that is void, must be kept in view. In the one case the defect can only be reached by a direct proceeding, and under our statute, if the defect is not such that the summons does not inform the party that a suit is instituted against him in court, the name of the plaintiff, and the court and the time when he is requested to ap- pear, it can not be reached even in a direct proceeding. It is not de- fective under the statute. But where the summons is void, the defect may be reached even in a collateral proceeding. The court in such case has no jurisdiction of the person. No action is commenced, be- cause no summons has been served." The summons must, by the express terms of the statute, be " issued by the clerk, under the seal of the court, must be directed to the sheriff, and must notify the defendant of the action commenced, the parties thereto, and the court where pending." If the summons does not contain these statutory requirements, it will be defective even under section 317, and should be quashed on the proper motion. But the supreme court has held that, although the summons without the seal attached is defective, the absence of a seal does not render the judgment void, but merely voidable, and the summons may be amended even after judgment. p 208. When new summons must issue on cross-complaint of surety. Where suit is brought against two or more apparently joint makers of a promissory note, and one of the defendants sets up, as against his co-defendants, that he is surety and they the principals, such cross-complaint is a new and original action between the defend- ants, and a summons must issue on the cross-complaint as in other cases. q But this is not necessary " if the other defendants are present in court, in person or by attorney, at the time of the filing of the surety's complaint, and have actual knowledge thereof." 1 And if the original complaint alleges the suretyship it would seem that no summons is necessary. 8 It was formerly held that no sum- mons was necessary upon a cross-complaint of suretyship (Fentriss v. (n) Freeman on Judgments, 126; Fletcher v. Holmes, 25 Ind. 458; The Brooks v. Allen, 62 Ind. 401 ; Stout v. State v. Ennis, 74 Ind. 17 ; Browning Wood, 79 Ind. 108. v. Merritt, 61 Ind 425. (o) R. S. 1881, 314; Wibright v. (q) Boyd v. Fitch, 71 Ind. 306; Hun- Nise, 4 Blkf.137; Bick. Civ. Prac. 40. ter v. Burnsville Tp. Co., 56 Ind. 213. (p) Joyce v. Whitney, 57 Ind. 550; (r) Joyce v. Whitney, 57 Ind. 550. The State v. Davis, 73 Ind. 359; (s) Pattison v. Vaughn, 40 Ind. 253. IX.] ACTIONS, HOW COMMENCED. 149 The State, 44 Ind. 271) ; but this case was expressly overruled by the case of Joyce v. Whitney, aud so was the case of Pattison v. Vaughn, 40 Ind. 253, so far as it is in conflict with the later case. But when the fact of suretyship is set up in the original complaint, there is no reason for requiring summons to issue, even where the de- fendant alleged to be the surety sets up the suretyship in a cross- complaint asking affirmative relief. The same rule that requires the issuing of summons in this class of cases applies equally to all cases where a cross-complaint is filed. 209. Summons must issue on supplemental complaint. Where a supplemental complaint is filed, and new parties defendant made, summons must issue for such new parties as in other cases. It has also been held, by the supreme court, that where a supplemental complaint is filed, alleging that one of the original defendants has ac- quired a new interest in the subject-matter of the action since the filing of the original complaint, in order to bind such after-acquired interest, a new summons must issue and be served on such defendant. 1 The court say : " It is claimed that it was error to proceed upon the supplemental complaint against Mrs. West, without summoning her to answer it, she having, by the death of her husband after the com- mencement of the suit, acquired an additional interest, and the hus- band never having had notice. I am of the opinion that this point is well taken. Such was the chancery practice, and I perceive nothing in the code to change it." In this opinion three of the judges concurred ; the remaining mem- ber of the court dissented, without filing a dissenting opinion. The soundness of this rule may well be doubted. Where a party is once in court, served with process, he should be regarded as in court for all purposes, and there is no reason why the filing of a supplemental complaint should entitle a defendant to a sec- ond notice any more than an amendment to the original complaint, which may, under our practice, change entirely the cause of action. 11 The ground upon which the court held that a new summons was necessary was that as the husband, who owned the interest in the land at the time the action was brought, had not been served with process, the interest owned by him was not represented in the action when it was inherited by the wife, and that such interest could only be bound by summons upon the owner. If the husband had been served the wife would have taken the land, under the, view taken by the court, pendente lite, and would have been bound by any judgment subsequently ren- (t) M*.1,in v. Noble, 29 Ind. 216. (u) Burr v. Mendenhall, 49 Ind. 496. 150 ACTIONS, HOW COMMENCED. [CHAP. dered. This would have been true, undoubtedly, if the wife had not been in court as a party to the action, and bound to take notice of all proceedings had therein. The question, so far as I know, has not been passed upon since the case cited, and the rule there laid down must be regarded as the law. SERVICE OF SUMMONS. 210. The statute. " Sec. 315. The summons shall be served either ' personally on the defendant, or by leaving a copy thereof at his usual or last place of residence. An acknowledgment on the back of the process, or the voluntary appearance of a defendant, is equivalent to service. Process against persons of unsound mind shall be served upon the guardian of such persons, if there be a guardian. If no guardian shall have been appointed, then such process shall be served by copy upon the superintendent of the hospital in which such person shall be confined, or upon the person having charge or custody of such person, in which case, upon proof of the insanity of the defendant, the court shall appoint a guardian ad litem for such defendant, whose duty it shall be to make proper defense to such action." v This statute does not provide by whom the service shall be made, but the supreme court has held that the service must be made either by the sheriff of the county or his deputy. w It has been held, however, that a sheriff may appoint a person to do a particular act ; as, for instance, to serve a particular writ, and that the act of such person will be valid, although he may not have taken the oath required in case of a general deputy. x These cases are not referred to in the case of Kyle' v. Kyle, but the court must have used the term deputy with a view to the former de- cisions of the court. The authorities cited, settle the question very clearly, that a service made by a special deputy, who has not been sworn, is valid. In the case of Kyle v. Kyle, there was no such question be- fore the court. There was nothing in the record to show that the person serving the summons had any authority from the sheriff. 211. Summons, how served when defendant resides out of the state. When the defendant is a non-resident of the state, the summons may be served upon him by any person, without having any authority from the sheriff* to make it, but the service must, in such (v) R. S. 1881, 315. . Groom?, 9 Ind. 243; Shattuck v. The (w) Kyle v. Kyle, 55 Ind. 387. State, 11 Ind. 473; Patterson v. The (x) Proctor v. Walker, 12 Ind. 660; State, 10 Ind. 296. The New Albany, etc., R. R. Co. v. IX.] ACTIONS, HOW COMMENCED. 151 case, to make it valid, be made out of the state, y and the service so made is not equivalent to personal service in the state, and no per- sonal judgment can be taken under it. It has the same force and effect as service by publication. z (l) 212. Service on infants. Summons must be served on infants the same as on other defendants.* HOW SERVED ON CORPORATIONS. 213. The statute. The statute provides: "Sec. 316. The pro- cess against either a domestic or foreign corporation may be served upon the president, presiding officer, mayor, chairman of the board of trustees, or other chief officer, or, if the chief officer is not found in the county, then upon its cashier, treasurer, secretary, clerk, general or special agent, or, if it is a municipal corporation, upon its marshal, or, if it is au incorporated library company, upon its librarian ; if none of the aforesaid officers can be found, then upon any person authorized to transact business in the name of such corporation ; or, if no such person, officer, or agent be found in the county where suit is pending, process may be sent for service to any other county in the state where such person, officer, or agent may be found. Provided however, that process shall not be served upon any such person, officer, or agent, when he is plaintiff in the suit, but in such cases process shall be served upon some other such person, officer, or agent of the corpora- tion than such plaintiff, and, in case the defendant be a foreign corpora- tion, having no such person, officer, or agent resident in the state, serv- ice may be made in the same manner as against other non-residents. " b 214. Officers upon whom service may be made. It has been held that, by this section, there are three classes or grades of officers upon whom service may be made : First. The president, presiding officer, mayor, or chairman of the board of trustees, who are chief officers. Second. Cashiers, treasurers, secretaries, clerks, general or special agents, or, in case of a municipal corporation, its marshal, or, if it be a library company, its librarian. (y) K. S. 1881, \ 319; Kyle v. Kyle, (a) De La Hunt v. Holderbaugh, 58 55 Ind. 387; Allen v. Cox, 11 Ind. 383. Ind. 285; Abdil v. Abdil, 26 Ind. 287; (z) E. S. 1881, 390; Allen v. Cox, Hough v. Canby, 8 Blkf. 301 ; Due v. 11 Ind. 383. Anderson, 5 Ind. 33. (1) Form of affidavit of service, Vol. (b) R. S. 1881, 316. 3, p. 323. 152 ACTIONS, HOW COMMENCED. [CHAl 1 . Third. Any person authorized to transact business in the name of such corporation. Service must be made on an officer of the first class, if one can be found ; if not, on one of the second class. If neither an officer of the first nor second class can be found, then upon one of the third class ; and, where service is made on the second class, it must be shown that no officer of the first class can be found ; and, if made on the third class, that neither an officer of the first nor second class can be found. But it was held in the same case that, under the act of March 4, 1853, as amended by the acts of 1861, Special Session, p. 78, service might be made on either of the officers or persons named in the act when the principal office of the company is not in this state, and that all of such persons must be regarded as belonging to one class. The persons named in the act are "any officer, director, conductor, attorney, or general agent of the company." 215. In actions against railroad companies for killing stock. In actions against railroad companies for killing stock, the service may be made *>n " any conductor on any train on said road passing into or through the county in which the stock was killed. " d But the statute does not require that service shall be upon a con- ductor. It may be on any of the officers or persons named in sec- tion 316. e And service upon a conductor is good against the company, where the road is being operated by a receiver and the conductor is in his employ/ 216. In actions to enforce liens against boats and other water-crafts. In actions to enforce liens against boats, vessels, and other water-crafts, growing out of contracts made in this state, and for injuries to persons or property in connection with such business in this state, the summons may be served upon the officer or consignee mak- ing the contract, or, if they can not be found, upon the clerk; or, if he can not be found, upon any other officer of the boat, vessel, or water-craft, or any person having charge thereof; or, if that can not (c) The Toledo, etc., R. R. Co. v. v. Tilton, 12 Ind. 3; The New Albany, Owen, 43 Ind. 40o. etc., R. R. Co. v. Grooms, 9 Ind. 243. ("d) R. S. 1881, 4027; The New Al- (e) The Jeffersonville, etc., R. R. Co. bany. etc., R. R. Co. v. Powell, 13 Ind. v. Ounlap, 29 Ind. 426. 373; The New Albany, etc., R. R. Co. (f) The Louisville, etc., R. R. Co. i\ Cauble, 46 Ind. 277 ; R. S. 1881, 402a IX.] ACTIONS, HOW COMMENCED. 153 be done, by affixing a copy of the summons in some conspicuous place on the boat or vessel. 8 217. In mandamus. In actions for mandamus the original writ must be left with the defendant, and the return made on a certified copy. The service by leaving a certified copy is not sufficient, but where there is more than one defendant the original writ may be served on one, and certified copies on the others. h 218. In actions against townships. In actions against town- ships it is required by statute that the summons shall be served by leaving a certified copy thereof with the township trustee at least ten days before the return day of such summons. 1 PUBLICATION. 219. The statute. " Sec. 318. The clerk, by order of the court, if in session or in vacation, without such order, shall cause a notice of the pendency of any action, and the term at which the same will stand for trial, to be published for three weeks successively, in some news- paper of general circulation, named by the plaintiff or his attorney, printed in the English language, and published in the county, or, if none be printed or published therein, then in the county in this state nearest thereto in which any such paper may be printed, in either of the following cases, shown by affidavit : "First. Where the defendant is a foreign corporation, and has prop- erty within the state, or the cause of action arose therein. "Second. Where the defendant, being a resident of this state, has de- parted therefrom, with intent to defraud his creditors, or to avoid the ser- vice of the summons, or keeps himself concealed therein with a like intent. "Third. Where the defendant is not a resident of this state, and the cause of action is founded upon or connected with a contract, or arises from a duty imposed by law in relation to real estate in this state, or the object of the action is to enforce or discharge a lien, or to obtain a divorce, or to try and determine or quiet the title to or pos- session of real estate or any interest therein, or to enforce the collection of any demand by proceedings in garnishment or attachment. "Fourth. Where the residence of any defendant, upon diligent in- quiry, is unknown. "Fifth. Where the name of any defendant is unknown, and^ he is believed to be a non-resident. "J (g) R. S. 1881, g 5277, 5284. (i) R. S. 1881, 6003. (h) R. S. 1881, 1169; The Board of ( j) R. S. 1881, 318. Comm'rs, etc., v. The State, 61 Ind. 75. 154 ACTIONS, HOW COMMENCED. [CHAP. This section is materially changed in the revision of the code. As it was originally, it could not be reconciled with itself. The first clause of the section clearly provided that the affidavit for publication should show that the action was in relation to real estate, while the causes which must be set out in the affidavit as clearly indicated that the publication might be made in other cases, as, for instance, in the third clause it must be in a cause of action founded upon or connected with a contra ft. or arising from a duty imposed by law, or the object of the action is to en- force or discharge a lien or to obtain a divorce. The amendment leaves out the provision in the original section that an affidavit shall be filed showing " that a cause of action exists against any defendant, or that he -is a necessary party in an action re- lating to real estate," and makes it the duty of the clerk to cause the notice to be given in the causes enumerated in the section shown by affidavit. 220. What must be shown by the affidavit for publica- tion. (D It was held by the supreme court, in an early decision under the section as it originally stood, that the affidavit for publication need not set out the cause of action. k But in a later case the one just cited was overruled, and it was held that section 38 of the statute must be complied with, and if the affi- davit failed to state the cause of action the publication would be void, and the court would have no jurisdiction. 1 The affidavit in this case was as follows : " John Caven, being sworn, upon his oath says that he is informed and believes that the defendant, Matilda Fountain, is not a resident of the State of Indiana." It will be noticed that this affidavit does not state the cause of ac- tion, nor does it state generally that it is in relation to real estate. The court, after quoting the affidavit and the section of the statute, say : " The suit of the Building and Loan Fund Association above mentioned was to enforce a lien upon real estate. The plaintiff in this suit, Matilda Fountain, was a necessary party to that suit, and she was a non-resident. Both of these latter facts should have been shown in the affidavit to obtain an order of publication. Both were equally material, and the omission of either rendered the affidavit fa- tally defective." This decision requires two things to be shown by the affidavit : first, the ca'use of action in the terms of the statute, that it was to enforce a lien upon real estate ; second, that the defendant was a necessary party to the suit and a non-resident. (2) (k) Trew v. Gaskell, 10 Ind. 265. (2) A judgment against'a resident on (1) Fountain v. Huston, 58 Ind. 316. constructive notice is void. Brown v- (1) Vol. 3, p. 324. Goble, 97 Ind. 86. IX.] ACTIONS, HOW COMMENCED. 155 The law as declared by the court is not applicable to the amended section. It does not require that the affidavit shall show that the party against whom publication is asked is a necessary party to the ac- tion, nor is it necessary in every case that the cause of action should be stated. Under the first, second, and fourth clauses, where publication is au- thorized, it is not made necessary that the cause of action should be stated. It is otherwise under the third It must, under that clause, be shown that the defendant is " not a resident of the state," and either that the cause of action is "founded upon or connected with a con- tract," or "arises from a duty imposed by law, in relation to real es- tate," or " to enforce or discharge a lien," or " to try and determine or quiet the title or possession of such real estate or any interest therein," or "to enforce the collection of any demand by proceeding in garnish- ment or attachment." As the section now stands it is not necessary, in actions against for- eign corporations, that the affidavit should show what the cause of action is, but it must be shown either that the corporation " has prop- erty within the state," or that the " cause of action arose therein." .The result is, that publication may be made where there are officers or agents of the corporation in the state where personal service might be had upon them under section 316 of the code, which also provides that where no such officers or agents reside in the state, " service may be made in the same manner as against other non-residents." m Section 318 should have required that in case of foreign corporations the affidavit should show that there are no officers or agents of the cor- poration resident in the state upon which personal service can be had. The fourth and fifth causes for publication are added as an amendment. The wisdom of this amendment may well be doubted. The fourth simply requires that the affidavit shall show that " the residence of any defendant, on diligent inquiry, is unknown;" and the fifth "that the name of any defendant is unknown, and he is believed to be a non- resident." The nature of the cause of action is not required to be shown. If it should turn out that the defendant is a non-resident, and the action is personal, no judgment could be taken against him. If he should, in fact, be a resident of the state, but of another county, the result would be the same.(l) Where the defendant is a non-resident, the affidavit is required, under the third clause, to show what the cause of action is. This (m) K. S. 1881, 316. (1) Brown v. Goble, 97 Ind. 8$. 156 ACTIONS, HOW COMMENCED. [CHAP. should also have been required where he is believed to be a non-resident, under the fifth subdivision. (1) - 221. How long publication must be made. Publication must be made thirty days before the return day ; and the thirty days commence to run after three weeks' publication. The time required, therefore, to give the necessary notice is fifty-one days. n HOW DEFECTS IN SERVICE WAIVED. 222. By appearance. It is not always necessary to the com- mencement of an action that a summons should issue or publication be made. Either may be waived by a defendant who is not laboring under any disability, and the failure to serve the summons, or any de- fect in the summons or its service, may also be waived. The appearance of the defendant is a waiver of the issuing of the summons, or any defects in its issuing or service, and. any defects in publication. The fact that the defendant, at the time he entered his appearance, is ignorant of the defect in the process, does not change the effect of his appearance. p But in order that an appearance to an action shall constitute such a waiver, it must be a full appearance. 223. Special appearance does not waive defects. A special appearance may be entered for the very purpose of taking advantage of the want of a summons or publication, or any defects therein. q Such an appearance is not a waiver. It is therefore important that where the appearance is special the record should show that fact, and disclose the purpose for which the appearance is entered. 224. "What constitutes an appearance. To constitute an ap- (1) As to the kind of actions in which constructive notice may be given, see Beck v. Koester, 79 Ind. 135 ; Acts 1885, p. 157. (n) R. S. 1881, 318; Loughridger. State, 61 Ind. 75; Jones v. Martin, 5 The City of Huntington, 56 Ind. 253. Blkf. 278; Dudley r. Fisher, 7 Blkf. (o) Hustr. Conn, 12 Ind. 257; R. S. 553; McCarthy v. McCarthy. 60 Ind. 1881, 315; The New Albany, etc., R. 128; Shirley v. Hager, 3 Blkf. 225. R. Co. v. Comb?, 13 Ind. 490; The City (p) Pixley v. Winchell, 17 Am. Dec. of Cm \vfordsville r. Hays, 42 Ind. 200; 525, and cases cited. Free v. Haworth, 19 Ind 404; Albert- (q) The New Albany, etc., R. W. son v. AVilliams, 23 Ind. 612; Temple- Co. v. Combs. 13 Ind. 490; Hust v. ton v. Hunter. 10 Ind. 380; The State Conn, 12 Ind. 257; Root v. Monroe, 5 v. H'olmes. 69 Ind. 577; Freeman on Blkf. 594; Carson v. The Steamboat Judgments, 126; The Louisville, etc , Talma, 3 Ind. 194; Campbell v. Swasey, R. W. Co. v. Nicholson, 60 Ind. 158; 12 Ind. 70; Hutchins v. Latimer, 5 Ind. The Board of Comm'rs. etc.', v. The 67. IX.] ACTIONS, HOW COMMENCED. 157 pearance to the action, there must be some formal entry, plea, motion, or official act, and this should be of record. 1 " Filing a demurrer to the complaint constitutes a full appearance to the action. 3 225. An agreement indorsed on the complaint -waiving process not an appearance. In the case of McCormack v. The First National Bank of Greensburg, 53 Ind. 466, the defendants in- dorsed on the complaint in vacation : "We hereby enter an appear- ance to the foregoing action, and waive the issuing and service of pro- cess." The court held that the indorsement was not sufficient to constitute an appearance to the action, and the issuing of a summons was not waived thereby. The decision is placed on the ground that the indorsement was made in vacation, and was not " a formal entry or plea or motion or official act," that appeared of record. The case seems to be a strong one, being against the express agreement of the defendants to waive the summons and its service, but it is in strict conformity with a long line of decis- ions, and is but an application of the well-settled rule : No act done by the defendant in vacation can amount to such an appearance to the action as will give the court jurisdiction of the person. 226. Appearance may be in person or by attorney. The appearance may be by the defendant in person or by attorney.' 227. Appearance by attorney without authority. The ques- tion sometimes arises, however, whether the attorney who appears has the proper authority, and whether the defendant can, after judgment, avoid the effect of the attorney's appearance, by showing that he was not authorized. The adjudicated cases on the point are very numer- ous, and the weight of authority is against the right to question the authority of the attorney in a collateral proceeding, except upon the ground of fraud." 228. When attorney's authority to appear can be contro- (r) Scott v. Hull, 14 Ind. 130 ; Shir- City of Crawfordsville v. Hays, 42 Ind. ley v. Hagar, 3 Blkf. 225 ; Root t\ Mon- 200. roe, 5 Blkf. 594; Carson . The Steam- (t) Bush v. Bush, 46 Ind. 70; 3 boat Talma, 3 Ind. 194; Robinson v. Estee's Plead, and Forms, 43; Henck The Board of Comm'rs of Vander- v. Todhunter, 16 Am. Dee. 300. burg County, 37 Ind. 333; Rhodes v. (u) Bush v. Bush, 46 Ind. 70, 83; Delaney, 50 Ind. 468; McCormack v. The Floyd County Agricultural Ass'n The First National Bank, 53 Ind. 466. v. Tompkins, 23 Ind. 348; Wiley v. (*) Knight r. Low, 15 Ind. 374; The Pratt, 23 Ind. 628; Coon v. Welborn, 83 Ind. 230. 158 ACTIONS, HOW COMMENCED, [CHAP. verted in a direct proceeding. Whether such authority can be denied in a direct proceeding is a more serious question, and one upon which the authorities are conflicting. In Indiana the rule is very clearly and fully stated in the case of Wiley v. Pratt. v The court say : " We think the rule should be stated thus : Where a judgment is re- covered in a court of general jurisdiction against a defendant, and the record shows that an attorney of the court appeared for the defendant and filed an answer, the jurisdiction of the court can not be contro- verted, unless it be by proof of fraud, which we are not in this case % required to decide, or that the defendant was not a citizen of the state, nor during the pendency of the proceedings within the jurisdiction of the court in which the judgment was rendered, and has neither been notified of the pendency of the suit nor had given authority to the at- torney to enter an appearance for him. . . . While, however, a party is permitted to controvert the authority of the attorney to appear for him when he was without the jurisdiction of the court rendering the judgment, and upon establishing the fact that the appearance was unauthorized is relieved from the enforcement of the judgment, this relief will not be granted where the defendant was within the jurisdic- tion of the court, and an unauthorized appearance has been entered for him by counsel, unless he can establish a defense on the merits, to the cause of action in which the judgment was rendered. And this rule i* a reasonable one. "Where the defendant has not been within the jurisdiction of the court, it would not be* just to compel him to come under that jurisdic- tion and establish his defense to the action, in order to obtain relief from a judgment obtained without notice ; and, therefore, the relief granted him must be absolute immunity from the judgment. But where the party was within the reach of the process of the court, al- though not served with notice, and an appearance has been entered for him by an attorney, the court may well require him to aver, in his proceedings to obtain relief from the judgment, that he has a defense to the action, and if no rights of bona fide purchasers have intervened, the court will stay proceedings under the judgment, while it preserves its lien, and permit the party to make his defense to the original action, and to the extent he may succeed in that defense relieve him from the effect of the judgment." w (v) Wiley v. Pratt, 23 Ind. 628. Ohio, 518; Brenton v. Lyfield, 37 N. ( w) Wiley v. Pratt. 23 Ind. 633, 635 ; H: 512 ; Sterne v. Bentley, 3 How. Pr. Pierson v. Holman, 5 Blkf. 482; Bush 442; Ellsworth v. Campbell, 31 Barb. r. Bush, 46 Ind. 70; Denton v. Noyes, 6 (8. C.) 134; Denton v. Noyes, 5 Am. Johns. 296; Critchfield v. Porter, 3 Dec. 237, and note; Brown v. Nichols, IX.] ACTIONS, HOW COMMENCED. 159 229. Some authorities the other way While the authorities supporting the rule laid down in Denton v. Noyes, and followed by our supreme court, are very numerous, there are many decisions the other way. 1 230. Effect of the rule. The effect of the rule adopted in this state, so far as it applies to the question now under consideration is, that where the defendant is not within the jurisdiction of the court and has had no notice of the pendency of the action, the appearance of an attorney without authority does not waive the failure to issue and serve the summons, or make publication. He may, in such case, set aside the appearance so entered, without submitting to the jurisdiction of the court. But where the defendant resides within the jurisdiction of the court, or has actual notice of the pendency o/ the action, an appear- ance by an attorney who has no authority to appear, is so far binding upon him as to waive any defect in the process or its service. He may, by showing the want of authority of the attorney to appear, and that he has a good and meritorious defense to the action, have leave to prove such defense, and if the defense is established, the judgment will be changed or modified accordingly, but by the very act of applying for such relief, he submits himself to the jurisdiction of the court, and waives the service of process, if this has not already been done by the appearance of the attorney, so that the effect upon his rights, so far as the service of process is concerned, would be the. same in either case. 231. Effect of appearance and attempt to set aside de- fault. An appearance after judgment by default, and an ineffectual attempt to set aside the default, does not operate as a waiver of defects in the process. y 232. Effect of agreement for judgment ; appearance at taking depositions ; giving special bail. An agreement to allow judgment to be rendered in a cause, and the rendition of the judgment in accordance with the agreement, waives any defects in the process. 2 42 X. Y. 20; Cox v. N. Y. Central R. v. U. S. Bank, 9 "Wheat. 829; Shelton R. Co., 63 N. Y. 419 ; Spalding v. Swift, v. Tiffin, 6 How. 186 ; Compiler v. Ana- 18 Vt. 214; Cyphert v. McClure, 22 wait, 2 "Watts, 490 ; Campbell v. Kent, Pa. St. 195; 3 Estee's Plead, and 3 Pa. St. 75; Sherrard v. Nevins, 2 Forms, 43, 44; Coon v. Welborn, 83 Carter, 241; Miller v. Gaskins, 3 Rob- Ind. 230. inson, 94. ix) Meachan v. Dudley, 6 Wend. (y) Mills v. The State, 10 Ind. 114. 515; Merit v. dough, 2 Tex. 582, 588; (z) Collins v. Rose, 59 Ind. 33. Harsbey v. Blackman, 20 Iowa, 161; Price r. Ward, 1 Dutch, 225; Osborn 160 ACTIONS, HOW COMMENCED. [CHAP. But the appearance of the defendant at the taking of a deposition is not a waiver. The court acquires no jurisdiction over the person until the party appears in court where there has been no service. 3 The giving of special bail in an attachment proceeding for the pur- pose of releasing the property attached is not such an appearance as will waive defective process. b 233. Can be no "waiver on the part of an infant. There can be no waiver on the part of an infant either by his appearance in person or by attorney. He can not appear except by a guardian ad litem, or his general guardian, and such guardian can not waive defects in the process or its service. The same rule applies to persons of unsound mind under guardianship. 234. Appearance by agreement before justice of the peace. It is expressly provided by statute that in actions before justices of the peace appearance may be by agreement.* 1 In order, however, to make such agreement binding, the parties must actually appear before the justice and state the agreement that should be entered on the record. The action in such case is deemed commenced from the time of making the entry, and no summons is necessary. 6 235. Party may expressly waive service of process. A party may expressly waive the service of the summons after it comes to the hands of the sheriff. Such waiver is equivalent to personal service, and the sheriff may properly return the summons as served by reading. But the party must understand at the time the nature and object of the writ/ By the terms of the statute an acknowledgment on the back of the summons is a sufficient service. 8 236. On voluntary appearance may demand continuance, when. An appearance in open court, while it waives the service of process, does not place the defendant in the same position as if served at the proper time. He may, where he appears on the day the com- (a) Scott v. Hull, 14 Ind. 136. baugh, 58 Ind. 285; Doe v. Anderson, (b) Root v. Monroe, 5 Blkf. 594; 5 Ind. 33. Carson v. The Steamboat Talnm, 3 Ind. (d) R. S. 1881, 1450. 194. (e) Iglehart's Treatise, 30. (c) Abdil v. Abdil, 26 Ind. 287; (f) Cast eel r. Hiday, 13 Ind. 5oG: Hough v. Canby, 8 Blkf. 301 ; llobbins Clegg v. Patterson, 32 Ind. 135. v. Robbins, 2 Ind. 74 ; Martin v. Starr, (g) R. S. 1881, 315. 7 Ind. 224; De La Hunt v. Holder- IX.] ACTIONS, HOW COMMENCED. 161 plaint is filed in open court, demand a continuance until the next term without being compelled to show any reason therefor. h SERVICE BY COPY. 237. How made. The service by copy is made by leaving a copy of the summons at the last or usual place of residence of the defend- ant.' And where two or more defendants reside at the same place, : copy should 'be left for each defendant.- 1 238. Meaning of term " last or usual place of residence." What is meant by the term used in the statute, " last or usual place of residence," is not clear. The supreme court has, however, defined the meaning of the statute : " The usual or last place of residence means the residence into which the person still a resident of this state has moved in this state last before the service of process." This is equivalent to saying that the copy must be left at the actual residence of the defend- ant in this state, and this has since been held to be the meaning of the statute. k PROOF OF SERVICE. 239. The statute. The statute provides the manner of proving the service of process. "The. proof of the service of any process is- sued by the court or of any notice required to be served upon any party shall be as follows : "First. If served by the sheriff, his certificate thereof. "Second. By any other person, his affidavit thereof. 1 "Third. In case of publication, a printed copy with the affidavit of the printer, his foreman or clerk, or of any competent witness. "Fourth. The written admission of the defendant. " The affidavit or admission must state the time and place of ser- vice." m 240. When service is made by private individual. It has been held, however, that the sheriff or his deputy may authorize a private citizen to serve a summons in a particular case, and that the (h) Albertson u.'Williams, 23 Ind. (j) Hutchins v. Latimer, 5 Ind. 67. 612. (k) Sturgis v. Fay, 16 Ind. 429; (i) R. S. 1881, 1 315; Kelly v. Mason, Pigg v. Pigg. 43 Ind. 117. 4 Ind. 618; Hughes v. Osborn, 42 Ind. (1) Kyle v. Kyle, 55 Ind. 387. 450; Campbell v. Swasey, 12 Ind. 70; (m) R. S. 1881, 481. Bryant v. The State, 5 Ind. 245; Pen- dleton r. Vanausdal, 2 Ind. 54. 11 162 ACTIONS, HOW COMMENCED. [CHAP. affidavit of the sheriff that such authority was given, and the affidavit of the party making the service that the summons was served by him, was sufficient proof of service." 241. Proof of service when made on party out of state. Where the party has been served out of the state by a private indi- vidual, proof of service may be made by his affidavit. But such ser- vice can only be made when the defendant is a non-resident, and the affidavit must state the time, place, and mode of giving the notice, and set forth that the person thus served is the identical person named in the action or proceeding. But where the party making the service is unable to make the affidavit as to the identity of the defendant, this may be shown by the affidavit of the plaintiff or any other person. 242. By -written acknowledgment of defendant on back of summons. Thfe service of the summons may be proved by the written acknowledgment of the defendant on the back of the sum- mons, 1 ' but in such case the acknowledgment must be shown to have been signed by the defendant. 243. Officer's return must be attached to or indorsed on back of summons. Where the proof of service consists of the officer's return, such return must be indorsed on the summons or attached thereto must show the time and manner of service, and be signed by the proper officer. 244. Return of officer, when conclusive. The return, when thus made by the officer, can not be. questioned by the parties to the action, except it appear to have been fraudulently made.(l) As to them it is conclusive.* 1 While the rule that the return of the officer is conclusive against the parties, and can not be collaterally attacked is well established, there are some authorities that are seemingly the other way/ In the ease of Butler v. The State, the court say : " In argument it is said that this return is conclusive that the note was given by the re- in) The N. A. & S. K. R. Co. v. lespie, 48 Ind. 397; Hamilton v. Mat- Grooms, 9 Ind. 243; Patterson v. The lock, 5 Blkf. 421; Lines v. The State, 6 State, 10 Ind. 290; Sbattuck v. The Blkf. 464. State, 11 Ind. 473; Proclor v. Walker, (1) Post, Vol. 3, p. 377; see also 12 Ind. 660. Neitert v. Trentman, 104 Ind. 390. (o) E. S. 1881, 319; Cole v. Allen, (r) Butler v. The State, 20 Ind. 169; M Ind. 122. Gregg v. Strange, 3 Ind. 366; Butts v. (p) II. S. 1881, 315. Francis, 4 Con. 424; Watson v. Wat- (q) Smith v. Noe, 30 Ind. 117 ; Row- .son, 6 Conn. 334. t-11 v. Kline, 44 Ind. 290; Splahn v. Gil- IX.] ACTIONS, HOW COMMENCED. 163 lator to satisfy the execution. We do not so understand the law. A return to au execution is always conclusive against the officer who makes it ; but, as a general rule, it is, as to other cases, mere prima facie evidence of the facts which it recites." 8 The rule is not correctly stated by the court. The return is conclu- sive against the officer and parties to the action in which the return was made and their privies. In the officer's favor, and as against third parties, the return is only prima facie evidence, and may therefore be collaterally attacked and controlled by other evidence. The rule is fully and correctly stated in the case of Splahn i>. Gilles- pie, 48 Ind. 397. The court say: "We think the following proposi- tions of law are deducible from the authorities which we have exam- ined in the investigation of the subject in hand, and which are here- after cited : " 1. That a return is conclusive against the officer who makes it, and is prima facie evidence in his favor. " 2. That a return upon a summons is conclusive between the par- ties to the action. "3. It is a well-settled principle of the English law, that a sheriff's re- turn on an execution, or order of sale, is not traversable, and the court will not try, on affidavits, whether the return by the sheriff is false, even though a strong case is made out showing fraud and collusion ; but the party must resort to his remedy by an action against the sheriff for a false return. In Connecticut, the return of a sheriff on mesne process is held to be only prima facie evidence, but even in that state he can not falsify it by his own evidence. In most, and proba-. bly all, of the other states of the United States, the rule is established that, as between privies to the suit in which the return is made, and privies and the officer, except when the latter is charged in a direct proceeding against him for a false return, the sheriff's return is con- clusive and can not be impeached. A party or privy may not aver the falsity of a return made by a proper officer without a direct proceed- ing against the officer, even in chancery. " 4. That, between third parties, the return of an officer is prima facie evidence only of the matters stated in the return. " 5. The return of an officer on mesne or final process can be evidence of the facts stated therein only when the facts recited are official acts done in the ordinary and usual course of proceedings. Matters of (s) Citing Gregg v. Strange, 3 Ind. 366; 1 Phi. Ev., 4 Am. ed., p. 521, note, 146; 2 Id., p. 363, note, 383. 164 ACTIONS, HOW COMMENCED. fCHAP. opinion or excuse for failure to perform a duty can not be made evi- dence by stating them in the return.* 245. Proof of publication. Notice by publication may be proved by the affidavit of the printer, or any person in his employ as a clerk or printer, of competent age, annexed to a copy of the notice taken from the paper in which it was published. The affidavit must specify the county, the time when and the paper in which the notice was published." 246. Proof of^ notice given out of court. Where notice is given out of court and served by the sheriff, although it belongs to none of the different classes of process connected with the trial of a cause of action, the sheriff's return is competent evidence of the service of the notice. 7 But such service may be made by any private individual and proved by his affidavit or oral evidence, and while the return of the officer is competent evidence, it should not be held as conclusive. 247. What return should show. The return should state the time when the summons was received, as the time the summons (t) Citing Lindley v. Kelley, 42 Ind. 294, and the authorities there cited ; Gwynne on Sheriffs, 473-477 ; Crocker Sheriffs, 45, 46, 47 ; Watson Sheriffs (Phila. ed. Law Lib.), 52, 53; Allen Sheriffs, 57; Small v. Hodgen, 1 Litt. 16; Trigg v. Lewis, Ex'r, 3 Litt. 129; Bibb v. Monroe, 5 Litt. 199; Taylor v. Lewis, 2 J. J. Marshall, 400; Hill v. Kling, 4 Ohio, 135; Stewart v. Hues- ton, 25 Ark. 311; Frasier v. "William- son, 12 Minn. 288 ; Hutchins v. County Comm'rs, etc., 16 Minn. 13; Huntress v. Tiney, 39 Me. 237; Hotchkiss v. Hunt, 56 Me. 252; Slayton v. Chester, 4 Mass. 478; Bull v. Burnell, 9 Mass. 93; The Inhabitants, etc., v. The In- habitants, etc., 11 Mass. 379 ; Angell v. Bowler, 3 K. I. 77 ; Stoors v. Kelley, 2 Paige, 418; Gardner v. Buckbee, 3 Cow. 120; Allen v. Martin, 10 Wend. 207; Jackson v. Wood, 3 Wend. 27; Townsend v. Olin, 5 Wend. 207 ; Gard- ner v. Hosmer, 6 Mass. 325; The Col. Ins. Co. v. Force, 8 How. Prac. 353; Ehleringer v. Moriarty, 10 Iowa, 78; Lawrence v. Pond, 17 Mass. 433; Whitaker v. Sumner, 7 Pick. 551 ; Miles v. Knott, 12 Gill. & J. 442; Bryan v. Brown. 2 Murphy, 343 ; Hamilton v, Adams, 2 Murphy, 161; Dunn v. Merriwether, 1 A. K. Mar. 158 ; Martin v. McCargo, 5 Litt. 293 ; Haynes v. Small, 22 Me. 14; Wilson v. Loring, 7 Mass. 392; Barret v. Cope-- land, 18 Vt. 67; Paxton v. Stekel, 2 Barr. (Pa.) 93; Doty v. Turner, 8 Johns. 20; Sheldon v. Payne, 3 Seld. 453; In re Smith, 4 Nevada, 254; Kingsbury v. Buchanan, 11 Iowa, 387; Barker v. Moffit, 11 Iowa, 527; Me. Clure v. Engelhardt, 17 111. 47; Wheaton v. Sexton, 4 Wheat. 503. (u) R. S. 1881, 473, 474; Willis v. Ridgway, 9 Ind. 367; Andrews v. The O. & M. K. R. Co., 14 Ind. 169. (v) White v. Webster, 58 Ind. 233; Taylor v. Taylor, 64 Ind. 356; R. S. 1881, 481. IX.] ACTIONS, HOW COMMENCED. 165 came to hand is the commencement of the action. w It should also state the time and manner of service. But where the return is general in its terms as " served upon the defendant," the court will presume the service to have been by reading. 1 And it has also been held that a return of " served by reading," without stating upon whom it was served, is sufficient. y But in case of a return that must be aided by the presumption of the court to make it valid, so far as the manner of the service is con- cerned, it can not be conclusive. It would, under the authorities, be conclusive that the summons had been served, but where the manner of service is not stated in the return, it may be shown by the party against whom it is offered as evidence how the service was made. DEFECTIVE PROCESS. 248. How to proceed in case of defective process or service. If the summons is defective the defect can be reached by a motion to quash the writ, and to make such motion a special appearance must be entered. 2 If there is a defect in the return of the officer it should be reached by a motion to set aside the return, and should state clearly the ob- jections thereto.* If the defect appears on the face of the summons or return, nothing more than the motion is necessary, but where the defect complained of does not so appear, the motion must be supported by affidavit. Where the summons is defective in stating the Christian name of the plaintiff erroneously, but the name was properly stated in the com- plaint, it was held that the summons might be amended to correspond with the complaint. b And the officer's return may be so amended as to state the facts. A motion to set aside or quash the summons or notice must state specifically the grounds of objection. d 249. Agreed case, when and how commenced. The statute (w) Ante, I 204. Combs, 13 Ind. 490; Hutchins v. Lati- (x) Colerick v. Hooper, 3 Ind. 316. mer, 5 Ind. 67; The J., M. & I. R. R. (y) Holsinger v. Dunham, 11 Ind. Co. v. Dunlap, 29 Ind. 426. 346; Chandler v. Miller, 11 Ind. 382. (b) Hannis v. Battorff, 17 Ind. 348; (z) Hust v. Conn, 12 Ind. 257 ; The The State v. Hood, 6 Blkf. 260. C., H. & D. R. R. Co. v. Street, 50 Ind. (c) Jackson v. The O. & M. R. 11. 225; Bick. Civ. Prac. 61 ; Iglehart's Co., 15 Ind. 192; De Armond v. Adams, Prac., p. 138, 13. 25 Ind. 455. Post, sec. 723. (a) Campbell v. Swasey, 12 Ind. 70; (d) Hadley v. Gutridge,58 Ind. 302 The New Albany, etc., R. R. Co. v. 166 ACTIONS, .HOW COMMENCED. [CHAP. provides for the submission of cases upon an agreed statement of facts. When this is done in addition to the agreed statement of facts, it must appear by affidavit that the controversy is real and the proceedings in good faith to determine the rights of the parties. 6 No summons is necessary under this section of the code, and the action is- commenced from the time of filing the statement of facts and the affidavit. (e) R. S. 1881, 553 ; Godfrey v. Dodge, 57 Ind. 584 ; Gregory v. Pur- Wilson, 70 Ind. 50 ; Manchester v. due, 29' Ind. 66. X.] LIMITATIONS OF ACTIONS. 1G7 CHAPTER X. LIMITATIONS OF ACTIONS. SECTION. 250. The statute. 251. Special statutes. 252. Statute affects the remedy only, and is constitutional. 253. A statute which takes away an existing cause of action or de- fense is unconstitutional. 254. "When a statute will be construed to be retroactive. SECTION. 266. Effect of statute where action may" be in tort or upon contract. 267. Actions on open and current ac- counts. 268. Meaning of the term "open and current account." EXCEPTIONS. 269. Statutory exceptions. WHEN STATUTE COMMENCES TO RUN. 255. From time cause of action ac-* crues. WHEN CAUSE OF ACTION ACCRUES. 256. In actions on promissory notes payable in bank. 257. In actions against agents, factors, and attorneys. 258. Actions against trustees and to enforce subsisting trusts. *259. "Where an officer or other person is bound by statute to pay or ac- count at a fixed time. WHEN A DEMAND IS NECESSARY. 260. Eules established by decided cases. 261. Notes payable when maker '-is able." 262. Actions to recover personal prop- erty. 263. In an action by one partner against another for an account- ing. 264. Demand excused by some act of the defendant. 265. When cause of action accrues where a tender is necessary. SET-OFF. 270. As a defense, not barred. LEGAL DISABILITIES. 271. Statute does not apply where party is laboring under legal disabilities. 272. Meaning of the term "under le- gal disabilities." 273. Where more than one legal disa- bility exists. 274. Effect of disability in case of ap- peals. 275. Non-resident of the state, or ab- sent on public business. 276. Section 297 only applies to causes of action that accrue out of the state. 277. What is meant by the phrase " absent on public business." 278. Limitations of another state can not be set up in an action re- specting real estate. 279. Case of Smith v. Wiley, 21 Ind. 224, criticised. 280. Effect of death of one of the par- ties before the statute has run its full time. 168 LIMITATIONS OF ACTIONS. [CHAP. 281. Where plaintiff has once brought his action and failed; time ex- tended in certain cases. 282. Where the action abates, or is de- feated by the death of one of the parties. 283. Where the judgment is arrested or reversed on appeal. CONCEALMENT. 284. Statute does not run where the defendant conceals the cause of action. 285. What amounts to concealment, within the meaning of the stat- ute, NEW PROMISE ACKNOWLEDGMENT. 286. Cause taken out of the statute by acknowledgment or promise in writing. 287. This exception applies only to ac- tions on contract. 288. What is a sufficient new promise. 289. Effect of acknowledgment or promise by one joint contractor. 290. A joint contractor, once released, can not be made liable to his co- contractor, who has been com- pelled to pay the debt. PART PAYMENT. 291. Effect of part payment. 292. What is part payment, within the meaning of the statute. 293. By and to whom payment must be made. 294. Will a new promise, acknowledg- ment, or part payment, by an executor or administrator, avoid the operation of the statute ? . PARTNERS. 295. A promise or part payment by one partner will bind the firm, if made before dissolution, but not if made afterwards. CITIZENS OF BELLIGERENT POWKI'.S. 296. The statute of limitations does not run between citizens of dif- ferent belligerent powers during the existence of war. JOINT CONTRACTS. 297. Practice, where one of several persons entitled to bring a joint action, is barred by the statute. MECHANICS' LIENS. 298. Limitations in case of mechanic's lien. 299. Time ceases to run from the time notice is left for record. 300. Notice must show, if a credit has been given, or the time in which to sue will be limited to one year from the completion of the work. 301. Limitation does not apply to no- tice required by section 5295 to be given by sub-contractors. 302. When statute commences to run in such cases. HEIRS, DEVISEES, AND DISTRIBUTEES. 303. Limitation of actions against heirs, devisees, and distributees, for the debts of the decedent. THE UNITED STATES AND STATE OF INDIANA. 304. The United States not barred, and the State of Indiana not barred by the statute, except as to sureties. JUDGMENTS AND DECREES. 305. Limitations of judgm'ents and de- crees. HOW QUESTION RAISED. 306. How the question of the statute of limitations may be raised. 307. Statute must be specially pleaded. X.] LIMITATIONS OF ACTIONS. 169 308. Statute need not be pleaded in specially pleaded by way of re- actions to recover real estate. ply. 309. Exceptions to the statute must be 310. May plead exceptions in supreme court. 250. The statute. "The following actions shall be commenced within six years after the cause of action has accrued, and not after- wards : "First. On accounts and contracts not in writing. 3 "Second. For use, rents, and profits of real property. b "Third. For injuries to property, damages for any detention thereof, and for recovering possession of personal property. "Fourth. For relief against frauds." d "The following actions shall be commenced within the periods herein prescribed, after the cause of action has accrued, and not afterwards : "First. For injuries to person or character, and for a forfeiture or penalty given by statute, within two years. 6 "Second. All actions against a sheriff or other public officer, or against such officer and his sureties on a public bond growing out of a liability incurred by doing an act in an official capacity, or by the omission of an official duty, within five years ; but an action may be brought against the officer or his legal representatives for money col- lected in an official capacity, and not paid over, at any time within six years. f "Third. For the recovery of real property sold on execution brought by the execution debtor, his heirs, or any person claiming under him by title acquired after the date of the judgment, within ten years after the sale. g "Fourth. For the recovery of real property sold by executors, admin- istrators, guardians, or commissioners of a court upon a judgment specially directing the sale of property sought to be recovered, brought by a party to the judgment, his heirs, or any person claiming a title (a) Carlisle v. Morris, 8 Ind. 421 ; (e) Pratt v. The State, 7 Ind. 625. Root v. Moriarty, 39 Ind. 85? Staley v. (f ) The limitation under the code Jameson, 46 Ind. 159; Sexton v. Sex- of 1852 was three years. R. S. 1881, \ ton, 35 Ind. 88 ; Sanders v. Sanders, 48 293 ; Pickett v. The State, 24 Ind-. 366 , Ind. 84. The Board of Commissioners, etc., v. (b) K. S. 1881, 292. Saunders, 17 Ind. 437. (e) Lucas v. Marine, 40 Ind. 289; * (g) Gray r. Stiver, 24 Ind. 174; '.u; Jeffersonville, etc., R. R. Co. v. Wood v. San ford. 23 Ind. 96; Hatfield Gabbert, 25 Ind. 431. v . Jackson, 50 Ind. 507 ; Franze v. Har- (d) Raymond v. Simonson, 4 Blkf. row, 13 Ind. 507 ; May v. Fletcher, 40 77; Pilcher v. Flinn, 30 Ind. 202; Ind. 575. Musselman v. Kent, 33 Ind. 452. 170 LIMITATIONS OF ACTIONS. [CHAP. under a party acquired after the date of the judgment, within five years after the sale is confirmed. 11 "Fifth. Upon promissory notes, bills of exchange, and other written contracts for the payment of money hereafter executed, within ten years : Provided, that all such contracts as have been heretofore executed may be enforced under this act within such time only as they have to run before being barred under the existing law limiting the commence- ment of actions, and not afterwards. "Sixth. Upon contracts in writing other than those for the payment of money on judgments of courts of record, and for the recovery of the possession of real estate, within twenty years." ' "Sec. 294. All actions not limited by any other statute shall be brought within fifteen years.J In special cases where a different limi- tation is prescribed by statute, the provisions of this act shall not apply. "Sec. 295. In an action brought to recover a balance due upon a mutual, open, and current account between the parties, the cause of action shall be deemed to have accrued from the date of the last item proved in the account on either side." k 251. Special statutes. This may be termed the statute of lim- itations proper, but it provides, as will be seen*, that, " in special cases, where a different limitation is fixed by statute, the provisions of this statute shall not apply." There are other statutes fixing a different limitation, as follows : First. Actions to enforce mechanic's liens within one year from the completion of the work, or furnishing the material, or if a credit be given, within one year from the expiration of the credit. 1 Second. Actions against heirs, devisees and distributees, by a creditor whose claim remains unpaid, who, six months prior to the final settle- ment of the estate, was insane, an infant, or out of the state, within one year after the disability is removed. 1 " Third. Proceedings to review judgments for any error of law ap- pearing in the proceedings and judgment, within one year, or for ma- terial new matter discovered since the rendition thereof, within three (h) Vancleave v. Milliken, 13 Ind. low, 52 Ind. 8; Nutter v. Hawkins, 93 105; Vail v. Hatton, 14 Ind. 314. Ind. 260. (i) The limitation of the right to sua (k) K. S. 1881, 292, 293, 294, 295. on this class of contracts was twenty The general statute does not apply to years, under the code of 1852. R. S. transactions between husband and wife. 1876, I 211, sub. Fifth. Barnett v. HHnhher-rer. 105 Ind. 410. (j) Potter v. Smith, 36 Ind. 231. (1) 11. S. 1881, ? 5297; post. \ 298 et Actions for partition are governed by seq ; Lawton v. Case, 73 Ind. 60. this general clause. Winslow v. Wins- (m) R. S. 1881, 2442. X.] LIMITATIONS OF ACTIONS. 171 years, or for both causes, within one year after the rendition of the judgment." Fourth. Actions to recover for the death of one caused by the wrongful act or omission of another, within two years. Fifth. Proceedings to be relieved from judgment taken on construc- tive notice, within five years. p Sixth. Proceedings to be relieved from a judgment taken through mistake, inadvertence, surprise, or excusable neglect, within two years from the rendition of the judgment. q Seventh. Actions on the recognizance against special bail, within two years/ Eighth. Prosecutions for bastardy, within two years from the birth of the child. 8 Ninth. Applications for new trial as of right, in actions to recover real estate, within one year. 1 Tenth. Actions to contest wills, within three years after the will has been offered for probate." Eleventh. Actions by administrators or executors to set aside fraudu- lent conveyances, within five years after the death of the testator or intestate. 7 Twelfth. Proceedings to set aside judgments against infants in set- tlement of insolvent estates, three years after arriving at full age. w (l) 252. Statute affects the remedy only and is constitutional. The statute of limitations is clear enough in its terms, but some of the most intricate questions in our practice have grown out of its provis- ions, and the decisions upon its construction and the effect that should be given it are very numerous. The most serious question as to the statute has been with reference to its constitutionality when applied to contracts entered into before its enactment. Those who insisted that the statute was unconstitutional did so upon the ground that the lim- itation fixed by its terms constituted a part of the contract. If the premise were correct, the conclusion would be inevitable. If the stat- ute in force at the time the contract was entered into formed a part of (n) R. S. 1881, 616; Brown v. Lu- (s) R. S. 1881, 995. cas, 18 Ind. 286; Nealis v. Dicks, 72 (t) R. S. 1881, 1064. Ind. 374; Rosa v. Prather, 103 Ind. 191. (u) R. S. 1881, 2596; Potts v. Fel- (o) R. S. 1881, 284; Hanna v. The ton, 70 Ind. 166; Floyd v. Floyd, 90 Jeffersonville, etc., R. R. Co., 32 Ind. Ind. 130. 113. (v) R. S. 1881,2334. (p)' R. S. 1881, 600. (w) R. S. 1881, 2453. (q) R. S. 1881, 396; Smith v. Noe, (l)For further limitations in particular 30 Ind. 117. cases, see Vol. 3, p. 382, 395. (r) R. 8.1881, 880. 172 LIMITATIONS OF ACTIONS. [CHAP. the contract, the legislature would have no power to repeal the statute or change its terms so as to affect the time of bringing the action. But the supreme court has decided that the statute does not form a part of the contract, but affects the remedy only, and may, therefore, be repealed or amended by the legislature. 1 253. A statute which takes away an existing cause of ac- tion or defense is unconstitutional. But while it is thus firmly settled by a long line of decisions that the statute of limitations affecte the remedy and not the cause of action, and may, therefore, be retro- active and change the time of bringing suit on contracts in force at the date of its enactment, it is equally well settled that the legislature can not, by a statute of limitations, take away either a cause of action or a defense that already exists. When a cause of action is already barred by the statute in force, thereby furnishing the party a defense to the action, the legislature can not, by extending the time in which such action may be brought, take away his defense nor divest a title already acquired by limitation. 3 " The rule is clearly stated by Mr. Cooley in his valuable work on Constitutional Limitations : " When the period prescribed by statute has once run so as to cut off the remedy which one might have had for the recovery of property in the possession of another, the title to the property, irrespective of the original right, is regarded in the law as vested in the possessor, who is entitled to the same protection in respect to it which the owner is entitled to in other cases. A subsequent repeal of the limitation law could not be given a retroactive effect so as to disturb this title. 2 " It is vested as completely and perpetually, and is as safe from legis- lative interference as it would have been had it been perfected in the (x) Blackford r. Ex'rs of Johnso*n, 1 gell on Lira, 22; Buttles v. Forbes. Blkf. 36; Lewis v. Brackenridge, 1 18 Pick. 532; Pritchard v. Spencer, 2 Blkf. 220; Winston v. McCormiek, 1 Ind. 48f> ; McKinney r. Springer, 8 Ind. 56; Manchester v. Dodridge, 3 Blkf. 506; Stipp v. Brown, 2 Ind. 647; Ind. 360; The State r. Swope, 7 Ind. Winston i\ McCormick, 1 Ind. 56; 91; Gimbel v. Smidth, 7 Ind. G27; Davis r. Minor. 28 Am. Dec. 325; s. c., Pritchard . Spencer, 2 Ind. 486; Stipp 1 Howard. 183. v. Brown, 2 Ind. 647; Hendricks v. (z) Citing Brent v. Chapman, 5 Comstock, 12 Ind. 238; Demoss v. Cranch, 358; Newsby's Adm'rs r. Newton, 31 Ind. 219; McEntire v. Blakely, 3 H.& M. 57; Parish v. Eager, Brown, 28 Ind. 347; Ludlow v. Van- 15 Wis. 532; Baggs' Appeal, 43 Pa. camp, 11 Am. Dec. 529. St. 512; Leffingwell v. Warren, 2 (y) Cooley's Const. Lira. 365; An- Blkf. 599. X.] LIMITATIONS OF ACTIONS. 173 owner by grant or by any species of assurance. a " The rule is the same as to the party in whose favor the cause of action exists. His right can not be taken away. Where the time of bringing the action is changed, a reasonable time must be allowed for the commencement of causes of action that have accrued.* Mr. Cooley thus states the law : "All statutes of limitation also must proceed on the idea that the party has full opportunity afforded him to try his rights in the courts. A statute could not bar the existing right of claimants without afford- ing this opportunity. If it should attempt to do so it would be not a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. It is es- sential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action." c But what is a reasonable time must be settled by the legislature.* 1 Notwithstanding the rule is well settled by authority, that the legis- lature alone can determine what is a reasonable time in which actions shall be commenced, the courts have been called upon frequently to decide whether, in a given case, the time given is reasonable ; and, in (a) Citing Holden v. James. 11 Mass. 396; Wright u. Oakley, 5 Met. 400; Lewis v. Webb, 3 Me. 326 ; Adkinson v. Dunlap, 50 Me. Ill; David r. Minor, 1 How. (Miss.) 183; Hicks v. Steigle- man, 49 Miss. 377 ; Knox r. Cleveland, 13 Wis. 245; Sprecker v. Wakelee, 11 Wis. 432; Pleasants v. Rohrer, 17 Wis. 577; Moore v. Luce, 29 Pa. St. 260; Morton v. Sharkey, McCahon, 113; Briggs v. Hubbard, 19 Vt. 86; McKinney v. Springer, 8 Hlkf. 506; Stipp v. Brown, 2 Ind. 647; Wires v. Farr, 25 Vt. 41 ; Woart v. M in nick, 3 N. H. 473; Rockport v. Walden, 54 N. H. 167; Thompson v. Caldwell, 3 Lit. 137; Couch v. McK.ee, 1 Eng. (Ark.) 495; Girdner v. Stephens, 1 Heisk. 280; Yancy r Yancy, 5 Heisk. 353; Bradford v. Shires' Ex'rs, 13 Ha. T; Lockhart v. Horn. 1 Woods. 628; Horhacb. v. Miller, 4 Neb. 31 ; Pitman Rump, 5 Greg. 17; Thompson '. Reid, 41 Iowa, 48 ; Reformed Church v. Schoolcraft. 65 N. Y. 134. (b) Thp State v. Clarke.. 7 Ind. 468; Pritchard v. Spencer, 2 Ind. 486; The State v. Swope, 7 Ind. 91 ; Leard v. Leard, 30 Ind. 171 ; Demoss v. New- ton, 31 Ind. 219 ; The State v. McNeal, 24 Ind. 383. (c) Cooler's Const. Lim., p. 366, cit- ing Price v. Hopkins, 13 Mich. 318; Call v. Hagger, 8 Mass. 423; Proprie- tors, etc., v. Laforce, 2 Greenl. 294; Society, etc., v. Wheeler, 2 Gall. 141 ; Blackford v. Peltier, 1 Blkf. 36; Thorn- ton v. Turner, 11 Minn. 339; Osborn v. James, 17 Wis. 573; Morton v. Sharkey, McCahon (Kan.), 113; Berry v. Ramsdell, 4 Met. (Ky.) 296; Lud- wig v. Stewart, 32 Mich. 27 ; Hart v. Hostwick, 14 Fla. 162; Peerless r. Watcrtown, 6 Biss. 79; O'Bannon r. Louisville, etc., R. R. Co., 8 Bush, 348; Adamson v. Davis, 47 Mo. 268. (d) Demoss v. Newton, 31 Ind 219: Call r. Hairger, 8 Mass. 423; Stearns v. Gittings, 23 111. 387; Price v. Hop- kins. 13 Mich. 318; Smith v. Morrison, 22 Pick. 430; Cooley's Const. Lim., p. 366. 174 LIMITATIONS OF ACTIONS. [CHAP. some cases, the right to determine the question has been exercised by the courts. The case of The State v. Swope was criticised in the case of DeMoss v. Newton, 31 Ind. 219, on account of the language used, that the court would allow a party a reasonable time after the statute took effect in which to bring his action ; but the latter case was not one where the cause of action grew out of contract. The cause of action sued on was given by law and not by contract, and an attempt was made to distinguish between causes of action arising out of contract and those given by law, but the authorities cited make no such dis- tinction, and the rule that the courts can not determine the reasona- bleness of the time given in either case, though supported by the weight of authority, has no good reason to support it. If it would be unconstitutional to deprive a party of his right of action absolutely, it would be equally so to limit the time so that the result would be the same; and it should be equally within the jurisdiction of the courts to determine the question of the constitutionality of the statute in the one case as in the other. 254. "When a statute will be construed to be retroactive. As I have already shown, statutes of limitation may be retroactive, but they are not so in all cases. Unless the statute is madfe retro- active by its express terms, or contains a proviso saving rights of action accrued prior to its passage, it has effect from its enactment, and is not retroactive/ In the case of McEntire v. Brown, it was held that the statute of 1852 was retroactive notwithstanding section 1289 of the code, which provides, in express terms, that " no part of this act shall be retroactive unless expressly so declared." The court did not claim that the statute was made retroactive by its express terms, but that section 1289 was open to construction, and did not mean what it expressed. It would be difficult to find a statutory provision more plainly or concisely worded. The construction of the statute, so called, was a plain violation of it terms, and that too in violation of the general rule that statutes shall not be retroactive. The court say : "This question, viz., whether the present statute of limitations can be held to have begun to run as a bar at a period anterior to its taking effect, was involved in The State v. Swope, 7 Ind. 91, and it was re- (e) Peerless v. Watertown, 6 Biss. Brown, 28 Ind. 347; The State v. 79; Adamson v. Davis, 47 Mo. 268; Swope, 7 Ind. 91; Dale i\ Frisbie, 59 State v. Swope, 7 Ind, 91 ; Leard v. Ind. 530; Pritchard v. Spencer, 2 Ind. Leard, 30 Ind. 171. 486; Manchester r. Dodrid-e, 3 Ind. (f ) E. S. 1881, 1289; McEntire v. 360; Gimbel v. Smidth, 7 Ind. 627. X.] LIMITATIONS OF ACTIONS. 175 solved in the affirmative. But section 801 of the code seems not to have been considered on that occasion, and it was doubtless not brought to the attention of the court. That section furnishes a rule of con- struction which is binding upon us, andean notbedisregarded, however well satisfied we may be that in a given case it would be mischievous. It* application in its broadest sense to some provisions of the code would probably be found to work results astonishing as well as novel, and also to furnish somewhat convincing evidence that the rules for the construction of statutes which -the common law furnishes and which have grown out of the experience and wisdom of ages, are quite as well calculated to accomplish just ends. The language of the section is itself, however, subject to construction and limitation. It might, taken alone, receive an interpretation without violence to its terms, and, indeed, without departing from the strictly literal meaning of the words employed, which would forbid the retroactive effect of almost every section in the whole code, for there are few, if any, which it is expressly declared shall be retroactive, though there are many which are so framed that they can not have the effect which their terms plainly signify, and Avhich was certainly intended, without giving them a retrospective as well as prospective operation. To limit such sections to a prospective effect, would be to give them an interpretation entirely different from the plain import of the language in which they are ex- pressed; and if such be the effect of section 801, then we have the novelty of an act required by one of its own provisions to be so con- strued as to mean less than its language plainly expresses. But it is clear that this was not the intention of the legislature. This section is one of several rules of construction contained in article 48 of the code, and the first section of that article (sec. 797 g ) expressly provides that these rules 'shall be observed when consistent with the context.' This limits the application of section 801, and relieves the code from the peril of being construed in some of its parts in a manner which would set at defiance its express language and plain import. Now the stat- ute of limitations applicable to the case before us is as follows : ' The following actions shall be commenced within the periods herein pre- scribed after the cause of action has accrued, and not afterwards : ' . . This language can not be limited to the future as to the period the completion of which shall bar the action." This is but an argument of the court against a plain and unequivocal provision of the statute. To say that section 1289, which requires an express provision in the statute to make it retroactive, does not apply as a rule of construction to that part of the code under consideration, (g) R. S.I 881,? 1285. 176 LIMITATIONS OF ACTIONS. [CHAP. because it contains no such express provision, is certainly laying down a rule of construction that would " work results astonishing as well as novel." There is nothing in the clause of the statute of limitations quoted by the court that indicates an intention to make it retroactive, but, if there were, it could not stand against the rule of construction furnished by section 1289, unless it contained an express provision that it should be retroactive. In the later case of Dale v. Frisbee, 59 Ind. 530, a different rule was expressed. The court say : "It is doubtless within the power of the legislature to enact a stat- ute of limitations which shall have a retrospective effect when it is so expressed in tiie act; and the general rule is that the statute in force at the time the action is commenced shall govern ; but when there is no proviso in the act saving rights of action accrued before its passage, they will not be barred by it until after a reasonable time has elapsed to allow the parties to bring their action thereon. This rule must be re- garded as settled in this state. We are aware that the case of McEn- tire v. Brown, 28 Ind. 347, presses against this rule, but it does not overrule it, and, upon a full review of all the cases, we think it is the true guide." The rule here laid down, so far as it holds that where there is no pro- vision in the statute saving causes of action accrued, such causes will not be barred until the party has had a reasonable time in which to bring his action, can not be made to harmonize with the doctrine that the courts can not determine what is a reasonable time. 11 If the legislature is the sole judge of what shall be regarded as a reasonable time, it must certainly be expressed, and if no provision is made for such cases by the legislature, either by saving causes of ac- tion accrued, or giving a reasonable time in which to bring the action, it is idle to say that parties shall have a reasonable time, because there is no power to give it. If the court had said that unless the statute ex- pressly so provides or saves existing causes of action, it is not retro- spective, and does not affect causes of action accrued before its passage, instead of saying that parties should have a reasonable time in which to sue, the two rules would have been consistent, and in my judgment the correct result would have been reached. WHEN STATUTE COMMENCES TO RUN. 255. From time cause of action accrues. Having considered the time when the statute takes effect, I pass to a consideration of its effects upon causes of action coming within its provisions. (h) Ante, 253. X.] LIMITATIONS OF ACTIONS. 177 TKfe statute is made, by its express terras, to commence to run from the time the cause of action accrues. When the cause of action ac- crues is sometimes a question of some difficulty, and one that the courts are frequently called upon to decide. In all ordinary cases, either of contract or tort, the time when the cause of action accrues is fixed either by the terms of the contract, in the one case, or the time of the commission of the wrongful act in the other; but these cases do no" include a great many of the causes that fall within the statute. WHEN CAUSE OF ACTION ACCRUES. 256. In actions on promissory notes payable in bank. In an action on a promissory note payable in a bank in this state, the cause of action accrues after the full three days of grace.' Mr. Igle- hart, in his work on Practice, expresses the opinion that a strict con- struction in favor of the creditor would prevail, thus authorizing him to sue on the last day of graced But the supreme court, in the case of Benson v. Adams, decided since this opinion was expressed, is clearly the other way, holding that the maker has all of the last day of grace in which to pay, and suit can not be brought until the next day thereafter. k The statute of limitations was not involved in the case, but i f the action could not be brought, the statute would not run. 257. In actions against agents, factors, and attorneys. In actions against agents, attorneys, factors, personal representatives, and persons occupying a fiduciary capacity, the cause of action does not ac- crue until there is a demand for payment or an accounting, and the statute commences to run from the time of such demand. 1 But it has been held that where a real estate broker agrees with the owner, for a compensation, to sell real estate for a certain price, but sells it for more, and conceals the fact that he has sold for a higher price, and re- (i) Benson v. Adams, 69 Ind. 353; (1) Judah v. Dyatt, 3 Blkf. 324; Hathaway v. Hathaway, 2 lud. 513; Armstrong v. Smith, 3 Blkf. 251; Rath- Baley v. Ricketts, 4 Ind. 488 ; Adams burn v. Ingalls, 7 Wend. 320; Taylor n, 4 R. 9^. X.] LIMITATIONS OF ACTIONS. 179 concurrent jurisdiction of the action, the statute of limitations would be a bar. The action was one against the administrator of a guardian, to recover money alleged to have been received by such guardian and not accounted for, and it was held that the statute of limitations would not bar the action. (1) Smith v. Galloway was a suit in chancery by a distributee of an es- tate against the administrator, and it was held that the administrator was a trustee for the person entitled to distribution, that the trust was one exclusively within the jurisdiction of a court of chancery, and the statute of limitations would not bar the action. These cases were no doubt correctly decided before the code was enacted. But since the code abolishes the distinction between actions at law and suits in equity, so far as the practice is concerned, and pro- vides that there shall be but one action, denominated a civil action, and the statute of limitations being a part- of the code, and made ex- pressly to apply to civil actions, the question is whether the distinctions made by the cases cited still exist. As all causes of action are now cognizable by courts of law, the line of distinction can not be main- tained as a question of jurisdiction. Whether it can still be maintained by the nature of the action is a more serious question, and one that is not answered by the decisions made under the code. The case of Matlock v. Todd, 25 Ind. 128, bears somewhat upon the point, and recognizes the equitable rule that actions for fraud do not commence to run until the fraud is discovered, and on this point cites the case of Raymond v. Simonson with approbation. But this case has been overthrown by later decisions, and is clearly in the face of the statute, which makes the statute to run unless the fraud is con- cealed. 1 The case of Pilcher v. Flynn, 30 Ind. 202, holds that the statute of limitations applies as well to suits in equity as to actions at law, thereby greatly changing the law in force when the case of Raymond v. Simon- son was decided. The case of Matlock v. Todd is disapproved. Neither of these cases bears directly upon the point under consideration, but the ruling of the court is that the statute of limitations applies as well to suits in equity as at law. The court should have said there was no such thing under the code as suits in equity and actions at law. It is not the statute of limitations alone that changes the law in force at the time Raymond v. Simonson was decided. The term civil action covers all kinds of actions, Avhether formerly cognizable at law or in equity, and the statute of limitations was clearly intended to apply to all such actions. After providing when certain specific actions shall (r) Post, $ 284, 285. Ind. 452; Newsom v. Board of Comm'rs, (lj See also Musselmiin v. Kent, 33 etc., 103 Ind. 520. 180 LIMITATIONS OF ACTIONS. [CHAP. be commenced, it is provided in express terms that "all actions not limited by any other statute shall be brought within fifteen years." 3 The case of Potter v. Smith states the rule thus, after quoting the language of the statute, that " there shall be, in this state, hereafter, but one form of action for the enforcement or protection of private rights, or the redress of private wrongs, which shall be denominated a civil action : " " And, as a part of the same system, the legislature pro- vided for the limitations of civil actions, and enacted that certain actions should be brought within certain specified times, and that all actions, not limited by any other statute, shall be brought within fifteen year? ; but that, in special cases, where a different limitation is prescribed by statute, the provisions of that article should not apply. Under these provisions it is quite clear that the legislature intended to fix certain and definite times within which all actions should be brought, whether they would, before the code, have been actions at law or suits in equity, and to leave nothing in this respect to doubt and uncertainty ; the time limited depending upon the nature and purposes of each particular action." The action was brought by an heir, against the administrator, to set aside a sale where the administrator was the purchaser, and was one that w r ould, before the code, have fallen within the rule laid down in Kaymond v. Simonson, and would not have been barred by the statute of limitations ; but it was held, that the general clause of the statute, limiting the time within which the action should be brought to fifteen years, applied, and would bar the action. The question remains, however, " When does the cause of action accrue ? " As a question of the right to the possession of property the statute does not commence to run so long as the trustee holds posses- sion, as such, because his possession is the possession of the cestui que trust; and, until he openly disavows the trust, and claims to hold ad- versely, there is no cause of action. 4 But if the cestui que trust has in fact a right of action, for money that should be paid or accounted for by the trustee, there is no reason why the statute should not commence to run as in other cases. If a demand is necessary, to entitle the cestui que trust to sue, the statute should commence to run from the demand. (1) If no demand is necessary the statute should commence to run from the time the trustee is bound to pay or account, or do any act that can be enforced. In short, there should be no distinction between actions growing out of trusts and those (s) R. S. 181,294; Potter?. Smith, (t) Cunningham v. McKindley, 22 36 Ind. 231; Wallace v. Metzker, 41 Ind. 149; Story's Eq. Jur. 1520a. Ind. 346; Harper v. Terry, 70 Ind. 264. (\) Langsdalev. Woollen, 99 Ind. 575. X.] LIMITATIONS OF ACTIONS. 181 growing out of other matters ; and whether the cause of action was cognizable in a court of equity or a court of law ought not to affect the question." It must be admitted, however, that the latest decisions of the su- preme court can not be harmonized with this view. In a late case the court say: "In considering the sufficiency of these paragraphs of answer, it must be borne in mind that the officer and the stockholder of a bank bear to each other the relation of a trustee to a cestui que trust ; and, that relation,once existing, will continue until it is dissolved in some legal mode, or until it is openly disavowed by the trustee, who insists upon an adverse right and interest, which is fully and unequivocally 3nade known to the cestui que trust." We need hardly say, for it is self- evident, that while the relation of trustee and cestui que trust might continue to exist between the appellants and the appellee's relators, the statute of limitations would never begin to run against, and would never constitute a bar, to the cause of action. " w 259. Where an officer or other person is bound by statute to pay or account at a fixed time. Where the law makes it the duty of an officer or other person to pay over money or account at cer- tain times, the cause of action accrues upon failure to pay or account, at the time fixed, without a demand, and the statute commences to run from that time. 1 WHEN A DEMAND IS NECESSARY. 260. Rules established by decided cases. The supreme court has laid down certain fixed rules for determining when a demand is necessary, as follows : " 1. When the time and place of payment are fixed in the contract, no demand is necessary before suit. " 2. When the time of payment is fixed and the place is left unde- termined by the contract, no demand is necessary. "3. If the contract be to pay on demand, a special demand before suit is necessary, though on a contract to pay money such demand is not necessary. " 4. When the place of payment is fixed by the contract, but the time is left undetermined, a demand before suit is necessary. (u) Iglehart's PI. and Prac. 90, 34. (w) Albert v. The State, 65 Ind. (v) Citing Oliver r. Piatt, 3 How. 413, 420; Earle v. Peterson, 67 Ind. (U. S.) 333; Cunningham v. McKind- 503. ley, 22 Ind. 149. (x) Moore, Adm'r, v. The State, 55 Ind. 3GO. 182 LIMITATIONS OF ACTIONS. [CHAP. "5. When both the time and place of payment are left undeter- mined by the contract, a demand before suit is necessary." * And these rules have been very closely adhered to in subsequent de- cisions. 2 The demand must be made within a reasonable time.(l) The rule that no demand is necessary where a note is made payable on demand seems to be a strange one, but it is well supported by au- thority. The rule is that in such case the bringing of the suit is a sufficient demand. In this class of cases the statute of limitations' commences to run from the date of the note. 8 But where the note is made payable " after demand," " after sight," or "after notice," a demand must be made, or notice given, within a reasonable time, and the statute does not commence to run until such demand or notice.*' 261. Notes payable -when maker "is able." Where a note is made payable " when the maker is able," or " when he can," the note matures when the maker is able to pay, and the statute commences to run from that time. If the maker is able to pay when the note is given, it matures at once. c 262. Actions to recover personal property. In actions to re- cover personal property, the question whether a demand is necessary depends upon the manner in which the defendant obtained possession. If the taking of the property in the first instance was wrongful, no demand is necessary, and the statute runs from the time the property was taken ; but where the property came into the hands of the defend- ant rightfully, and he is charged with detaining it without right, a de- mand must be made, and the statute runs from the demand/ But where the party who comes into the possession of property (y) Frazee v. McChord, 1 Ind. 224; (1) High v. Board of Comm'rs, etc., Cole v. Wright, 70 Ind. 179, 188. 92 Ind. 580. (z) Mountjoy v. Adair, 1 Ind. 254; ^a) Ang. on Lim., 95; Wenman v. Poust v. Hannah, 1 Ind. '273; Maggart Mohawk, etc., Ins. Co., 28 Am. Dec. v. Chester, 4 Ind. 124; Johnson v. Sey- 464. mour, 19 Ind. 24; Ohio, etc., R. R. Co. (b) Ang. on Lim., 96, 97. D.Cramer, 23 Ind. 49J, Fankboner v. (c) Veasey v. Reeves, 6 Ind 406; Fankboner, 20 Ind. 62: Mercer v. Pat- Barnett v. Bullett, 11 Ind. 310. terson, 41 Ind. 440; Bradfield v. Me- (d) Wood v. Cohen, 6 Ind. 455; Cormick, 3 Blkf. 161; Story on Prom. Evans v. Devano, 5 Blkf. 588; Conner Notes, 29; Higert v. The Trustees, v. Comstock, 17 Ind. 90; Underwood v. etc., 53 Ind. 326; McCulloch v. Cook, Tatham, 1 Ind. 276; Black v. Hersch, 34 Ind. 290; The School Town, etc.. v. 18 Ind. 342. Gebhart, 61 Ind. 187; R. S. 1881, 368; Brown v. White, 3 Blkf. 431; Emerick v. Chesrown, 90 Ind. 47. X.] t LIMITATIONS OF ACTIONS. 183 rightfully sells it or converts it to his own use, he is liable to the owner for its value without a demand. 6 263. In an action by one partner against another for an accounting. One partner can not maintain an action against another for an accounting in their partnership business without a demand. Upon the death of one of the partners, it is the duty of the survivor to settle the business of the partnership, and he is only accountable to the heirs, or personal representatives of the deceased partner for any balance remaining in his hands after such settlement. Therefore, no action can be maintained against him until after the settlement of the partnership business and a demand for an accounting. The statute does not commence to run until such demand. f 264. Demand excused by some act of the defendant. There are cases where, under the rules, a demand would be necessary, but an excuse may be shown for the failure to make such demand, as, for instance, in an action for specific performance, where the defendant has, by his own act, put it beyond his power to perform the contract on his part at the time stipulated, and other cases of a like nature. In such case, the statute runs from the time the contract should be per- formed. 8 265. When cause of action accrues where a tender is nec- essary. In some cases, as, for instance, in the sale of personal prop- erty, it is necessary to tender the price in order to pass the title to the property, and no action can be maintained until such tender is either made or waived by the opposite party. In all cases where a tender is necessary before a suit can be brought, the rule is the same as in case of demand, and the statute commences to run from the time the tender is made. h 266. Effect of statute where action may be in tort or upon contract. In some cases, where a cause of action exists for a tort, (e) Furguson v. Dunn, 28 Ind. 58; v. Jones, 44 Ind. 136, 145; Krutz v. The Jeffersonville, etc., K. E. Co. v. Craig, 53 Ind. 561 ; Cobble v. Tomlin- Gent, 35 Ind. 39; Nelson v. Corwin, son, 50 Ind. 550. 59 Ind. 489; Proctor v. Cole, 66 Irtd. ' (g) Boyle v. Guysinger, 12 Ind. 273; 576; Bunger v. Roddy, 70 Ind. 26; Hafford v. The State, 6 Ind. 365 ; Car- Robinson v. Skipworth, 23 Ind. 311; penter v. Lockhart. 1 Ind. 434. Spencer v. Morgan, 5 Ind. 146; Smith (h) Wainscott v. Smith, 68 Ind. 312; v. Stewart,. 5 Ind. 220; Snyder v. Ba- Clark v. The Continental, etc., Co., 57 ber, 74 Ind. 47. Ind. 135; Houston v. Minor, 5 Blkf. (f) R. S. 1881. \ 6046 etseq.; Skillen 89; Newly v. Rogers, 54 Ind. 193. 184 LIMITATIONS OF ACTIONS. [CHAP. the party may waive the tort, and sue as upon contract ; and in others the contract may be waived and an action in tort be resorted to.' When such election is made, the form of the action determines what the limitation shall be. 267. Actions on open and current accounts. "In an action to recover a balance due upon a mutual open and current account be- tween the parties, the cause of action shall be deemed to have accrued from the date of the last item proved in the account on either side." j 268. Meaning of the term "open and current account." " In' the statute of 1838, the term ' running accounts' was used, and it was held to mean ' mutual and reciprocal demands between the par- ties which remain unsettled. '" k And the same meaning has been given to the present statute. 1 In Prenatt v. Runyan the court say: "The items of the account were all on one side, there being none on the other except credits of payments. We think the terms mutual, open, and current account mean something more than charges on one side and credits of payment on the other. In the language of an elementary writer, mutual ac- pounts are made up of matters of set-off. There must be a mutual credit founded on a subsisting debt on the one side, or an express or implied agreement for a set-off *of mutual debts. . . . There must be a mutual, or, as it has been expressed, an alternate course of deal- ing. Where payments on account are made by one party for which credit is given by the other, it is an account without reciprocity, and only upon one side." m Where the action is for work and labor performed, consisting of sep- arate and distinct items, but embraced in one entire contract, the stat- ute does not run against the claim for any of the items until the en- tire work is completed. The cause of action does not accrue for any of the work until the work is completed, as required by the contract." EXCEPTIONS. 269. Statutory exceptions. The most important questions, a& well as the greater number connected with the statute of limitations, fi) Pom. Bern., 567 et seq. (1) Prenatt v. Kunyon, 12 Ind. 174. (j) R. S. 1881, 295; Sanders v. San- (m) Citing Ang. on Lim. (3d ed.) ders, 48 Ind. 84; Harper v. Harper, 57 149. See also Perrill v. Nichols, 89/ Ind. 547. Ind. 444. (k) Brackenridge v. Baltzell, 1 Ind. (n) McKinney v. Springer, 3 Ind. 333 ; Knipe v. Knipe, 2 Blkf. 340. - 59; Littler v. Smily, 9 Ind. 116- Wright v. Miller, 63 Ind. 220. X.] LIMITATIONS OF ACTIONS. 185 have grown out of the exceptions. The provisions of the statute fix- ing the times in which actions shall be brought are in the main clear and easily understood. But to these rules there are several very im- portant exceptions named in the statute which will now be considered. They are : 1. In case of set-off. 2. Where the person is laboring under legal disability when the ( a use of action accrues. 3. Where the defendant is a non-resident of the state or absent on business. 4. Where one of the parties, dies before the statute has run its full time. 5. Where the plaintiff has once brought his action, and without his negligence the action has abated. 6. Where the party liable to be sued has concealed the cause of action. 7. Where there is a new promise in writing to pay the debt. These are exceptions expressly named in the statute. There are others that are recognized by the adjudicated cases that will be con- sidered farther on in this chapter. SET-OFF. 270. As a defense not barred. The statute provides that "a party to any action may plead or reply a set-off or payment to the amount of any cause of action or defense notwithstanding such set-off or payment is barred by the statute." This section of the statute simply permits a party who holds a claim that is barred by the statute of limitations, so as to prevent his suing upon it, to use it as a set-off against a claim brought against him, either as a cause of action or as a defense to an action brought by him. His right to enforce such claim can not go beyond its use as a defense. Al- though the claim may exceed the cause of action of his adversary, no judgment can be recovered for the excess, but in such case his set-off would defeat the action. If the set-off is less than the claim of his adversary, he is entitled to credit for his claim if established. 15 In the case of Fox v. Barker it was contended that the statute only applied to such items of set-off as had accrued after the demand sued upon, but the court held otherwise. That the statute, being general in (o) K. S. 1881, 307 ; Rennick v. (p) Livingood v. Livingood, 6 Blkf. Chandler, 59 Ind. 354; Armstrong v. 268; Fox v. Barker, 14 Ind. 309; Caesar, 72 Ind. 280; Wurring v. Hill, Fankboner v. Fankboner, 20 Ind. 62. 89 Ind. 497. For the rule as to counter- claim, see Eve . Louis, 91 Ind. 457. 186 LIMITATIONS OF ACTIONS. [CHAP. its terms, applied to all matters of set-off, no matter whether the cause of action upon them accrued before or after the cause of action against which they are pleaded. LEGAL DISABILITIES. 271. Statute does not apply where party is laboring under legal disability. "Any person being under legal disabilities when the cause of action accrues, may bring his action within two years after the disability is removed. " q This statute, if taken literally, would, in many cases, limit the time in which persons laboring under disabilities might sue, to a much shorter period than other persons. They have, by the terms of the stat- ute, but two years after their disability is removed in which to sue, while the statute itself might give them a much longer time, if the disability should be removed before the statute had run its full time ; but the intention of the statute, though not so expressed, is to add to and not take away from the time given by it in which to sue. If the cause of action has accrued while the party entitled to sue is laboring under legal disability, and the limitation would otherwise have run within a year of its full time, the effect of this section would be to add one year to the time. If the full time named by the statute has run when the disability is removed the statute gives two years in which to sue. If the time has not run within two years of the full time the section has no effect/ 272. Meaning of the term " under legal disabilities." The term "legal disabilities" includes "persons under the age of twenty-one years, or of unsound mind, or imprisoned in the states prison, or out of the United States." 8 The term "of unsound mind" includes "idiots, non-compotes, luna- tics, and distracted persons." 1 Under the code of 1852, married women were included as persons laboring under legal disabilities," but the disability of married women has been removed. v (q) R. S. 1881, I 296. v. Brewin, 52 Ind. 140; Bauman v. (r) Hawkins v. Hawkins, 28 Ind. Grubbs, 26 Ind. 41f). 66; The Indiana, etc., R. R. Co. v. (s) R. S. 1881, 1285; Bauman r. Oakes, 20 Ind. 9; Miles v. Singerman, Grubbs, 20 Ind. 419; Hawkins v. Ha\\ 24 Ind. 385; Vancleve v. Milliken, 13 kins, 28 Ind 66. Ind. 105; Vail v. Holton, 14 Ind. 344; (t) R. S. 1881. ?? 1285, 2544. Breeding v. Shinn, 8 Ind. 125; John- (u) 2 R. S. 1876, p. 313, 797. son v. Pinegar, 41 Ind. 168; Sun man (v) R. S. 1881, 5115; Rosa v. Pra- ther, 103 Ind. 191. X.] LIMITATIONS OF ACTIONS. 187 273. Where more than one legal disability exists. It fre- quently happens that the same person labors under more than one dis- ability at the same time. If more than one disability exists at the time the cause of action accrues, the statute does not commence to run until all are removed." But in order to make either of the legal disabilities available, it must exist at the time the cause of action accrues. Therefore, if but one disability exists when the cause of action accrues, the statute will not run until that disability is removed, and the party has two years after its removal to bring his action ; but the fact that another disability at- taches after the cause of action accrues, but before the first is removed, does not affect the statute, for the reason that it did not exist at the time the action might have been brought, and, as to such disability, the statute has once commenced to run and can not be stayed. 1 Where no disability exists, when the cause of action accrues, its opera- tion is not suspended by any subsequent disability. 7 274. Effect of disability in case of appeals. By a special provision, parties laboring under legal disability have one year after the disability is removed in which to appeal, 2 and the disability may In- pleaded in the supreme court. 3 275. Non-resident of the state or absent on public busi- ness. The statute provides : " The time during which the defendant is a non-resident of the state or absent on public business shall not be computed in any of the periods of limitation, but when a cause has been fully barred by the laws of the place where the defendant resided, such bar shall be the same defense here as though it had arisen in this (w) Iglehart's PI. and Pr. 85, 22; Govern, 2 Sawyer (U.S.), 515; Mer- Jackson v. Johnson, 15 Am. Dec. 433 c-er v. Selden, 1 How. (U. S.) 37; Ho- (5 Cowen, 74). gan v. Kurtz, 94 U. S. 773. (x) Ang. on Lim., \ 197; Thompson (y) Ruff's Adnvr v. Bull, 16 Am. v. Smith, 10 Am. Dee. 457 (7 Sergeant Dec. 290; Adamson v. Smith, 12 Id. & Rawle, 209); Bensell v. Chancellor, 665; Thompson v. Smith, 10 Id. 453; 5 Wharton, 371; Kankin v. Tenbrook, Faysoux v. Prather. 9 Id. 691; Demo- 6 Watts, 388; Lynch v. Cox, 23 Pa. St. rest v. Wynkoop, 8 Id. 467; Jackson 265; McFarland v. Stone. 17 Vt. 165; v. Moore. 7 Id. 398; Fitzhugh r An- Dernorest v. Wynkoop, 8 Am. Dec. derson, 3 Id. 625; Harvey v. Tobey, 25 467; De Kay v. Durrah, 2 Greenl. (N. Id. 430. J.) 294; Fritz v. Joiner, 54 111. 101; (z) R. S. 1881, 633; Hawkins v. Rogers v. Brown, 61 Mo. 187; Swear- Hawkins, 28 Ind. 66. inger v. Robertson, 39 Wis. 462; Dan- (a) Hawkins v. Hawkins, 28 Ind. iel v. Day, 51 Ala. 431; Harris v. Me- 66; McEndree v.McEndree, 12 Ind.97. 188 LIMITATIONS OF ACTIONS. [CHAP. state : provided, that the provisions of this section shall be construed to apply only to causes of action arising without this state" b It is not necessary that the defendant should be absent when the cause of action accrues. If he is absent or a non-resident, at any time after the cause of action accrues, the operation of the statute is thereby suspended until his return. The effect of the exception is, that the time of the defendant's non-residence or absence on public business must be added to the limitation fixed by the statute. 276. Section 297 only applies to causes of action that accrue out of the state. The section expressly provides that its provisions shall apply only to causes of action arising out of the state. Mr. Iglehart, in his work on Pleading and Practice, says of this proviso : " But there seems to have been no regard paid in the decided cases to the place where the cause of action accrued, and indeed this point seems neither to have been involved nor discussed in any case." d The learned author overlooks the fact that no such point could have been involved in the decided cases cited by him, for the reason that when they were decided there was no such provision in the statute. 6 The proviso that the section should apply only to causes of action arising without the state was added, by way of amendment, in 1875. f Prior to this amendment, the section applied in terms .to all causes of action, whether they arose within or Avithout the state. g Nor is it strictly correct that the point was never considered in the decisions referred to. The question, whether the section, as first enacted, was not intended to apply only to causes of action arising out of the state, was one not free from doubt. In the case of Van Dorn v. Bodley, Buskirk, J., in a very able and exhaustive dissenting opinion, main- tained that the statute only applied to causes of action arising out of the state. The opinion contains a very able discussion of the question, and the position assumed is strongly supported by the authorities cited. It was this doubt as to the proper construction of the section that gave rise to the amendment. But the proviso is held to apply only to the latter clause of the section ; therefore the cases cited, so far as they hold that a cause of action arising in this state may be barred by the statute of another state, can have no force under the present statute.(l) (b) R. S. 1881, 297. (f ) Acts 187n, Spec. Sess., p. 64. (c) Rutherford v. Tevis, 5 Ind. 530; (g) Harris v. Harris, 38 Ind. 423; Lagon v. Neilson, 10 Ind. 183; Cornell Van Dorn v. Bodley, 38 Ind. 402; v. Goodrich, 21 Ind. 179; Ulmer v. Wright v. Johnson. 4"2 Ind. 29. The State, 14 Ind. 5'J. (1) Mechanic's Build. Ass'n v. Whit- (d) Iglehart's PI. and Pr. p. 86, \ 23. acre, 92 Ind. 547, 554 : Vol. 3, p. 382. (e) 2G. &H. 161, 21 6. X.] LIMITATIONS OF ACTIONS. 189 277. What is meant by the phrase, "absent on public business." As has been said by the supreme court, no definite rule can be laid down by which to determine, in all cases, what will consti- tute such an absence from the state as will for the time suspend the operation of the statute. .The supreme court has been called upon to give a construction to this clause of the section, and say : " We are asked by the parties to the record to give a construction to the first clause or sentence of sec- tion 216 h of the practice act. . . . The question is asked in this case, what is the absence on public business, the time or duration of which shall not be computed in any of the periods of limitation ? It is difficult so difficult as to be almost impossible to lay down a gen- eral rule which shall be applicable to and govern all cases in regard to the character of the public business, the duration of the absence as to which public business shall not be counted in any period of limitation. Indeed, it seems to us that it is hardly a case for a general rule; but that in each particular case it must be determined, from the facts of the case, whether the public business was or was not of such a character as to bring the case within the provisions of the statute. ... It seems to us that the absence of the defendant, contemplated in this section of the statute, must be such as would prevent the plaintiff, during its continuance, from enforcing his cause of action by a judgment in per- sonam againsj, tfie defendant. If the absent defendant maintains his res- idence in this state, so that such service of process can be had on him by copy as would authorize the rendition of a personal judgment against him, such defendant can not be said to be absent, within the meaning of that word, as used in section 216 of the code, and the time of such absence of such defendant will be computed in any of the pe- riods of limitation." ' This construction seems to be equivalent to saying that the clause 'construed is meaningless. If the defendant is a resident of the state, he can be served by copy. Service by copy is personal service, upon which a judgment in personam may be taken.-* If the defendant must be a, non-resident of the state to constitute such an " absence" as would suspend the operation of the statute, this clause of the section is merged in the one that applies to non-residents, and could have been omitted from the statute without changing its meaning. In an earlier case, it was held by the supreme court that absence (h) R. S. 1881, 297. ( j) R. S. 1881, 315; Ewing v. Ew- (i) Niblack v. Goodman, 67 Ind. ing, 24 Ind. 468; Dunkle v. Elston, 71 174, 197. Ind. 585. J 90 LIMITATIONS OF ACTIONS. [CHAP. from the state as a volunteer soldier was an " absence on public busi- ness," within the meaning of the statute. k But this is clearly not the case, if the construction given the statute in the later case is right, as a volunteer soldier would not lose his residence, and could be served by copy so as to " authorize the rendition of a personal judgment against him." Ray, J., in the case of Gregg v. Matlock, dissented from the opinion of the majority of the judges on this ground, saying: " Statutes of limitation are for the repose of debtors. It has been held that a vol- unteer soldier or officer in the army of the United States does not lose his residence; he may be sued, and service may be had upon him by copy left at his place of residence. If thus exposed to litigation while absent, and yet excluded from the benefit of the statute, his absence on public business simply imposes upon him a burden, from which those who avoid such service are exempt." This language of Ray, J., is quoted in the case of Niblack v. Good- man, but no comment is made upon it, and we have no means of deter- mining whether the position taken in the dissenting opinion is approved or not, but may infer that it is approved, as it is in harmony with the construction given the statute. If so, the court should have overruled the former case. 278. Limitations of another state can not be set up in an action respecting real estate. Prior to the amendment of section 43, it applied to all classes of actions, whether local or transitory, and the limitation of another state, where the defendant was a non-resident, might be pleaded in an action relating to real estate, as well as in per- sonal actions, if the statute were given a literal construction. But the supreme court held in an early case that the statute did not apply to such actions. 1 As the statute is now, the question is of less importance, as a case of* this kind is not likely to arise out of the state. 279. Case of Smith v. Wiley, 21 Ind. 224, criticised. In the case of Smith v. Wiley, 21 Ind. 224, it was held that under section 216 (297 new code) the statute would not run during the absence of the plaintiffs from the state. The section relates exclusively to the ab- sence of the defendant, and the reason for applying it to the plaintiff in violation of its express terms is not obvious. The court below held the other way, and the supreme court say: " The decision was clearly (k) Gregg v. Matlock, 31 Ind. 373. (1) Lagon v. Neilson, 10 Ind. 183; Iglehart's PI. and Pr. 86, 183. X.] LIMITATIONS OF ACTIONS. 191 wrong, as the statute expressly excepts non-residents from its operation. The complaint shows the plaintiffs were non-residents." If this were the correct rule, a defendant could not avail himself of the statute, so long as the plaintiff is a non-resident, although he re- sides within the state, and could be sued at any time. The fact that the plaintiff is a non-resident would not prevent his bringing his suit, and the rule that the statute does not run during his non-residence is \vithout any reason to support it. The case has never been overruled, and it seems the question has not since been presented to the supreme court. 280. Effect of death of one of the parties before the stat- ute has run its full time. " If any person entitled to bring or lia- ble to any action shall die before the expiration of the time limited for the action, the cause of action shall survive to or against his repre- sentatives, and may be brought at any time after the expiration of the time limited, within eighteen months after the death of such person."" 1 This section, like section 296, applies to both parties, and its effect is very much the same. If the party dies as much as eighteen months before the statute runs its full time, this section has no effect, but if the death occurs less than eighteen months before the statute has run its full time, the representatives may sue at any time within eighteen months from the death, notwithstanding the limitation expires before that time. The section has received a construction at the hands of the supreme court in a late case, in which the court say : "It was not the legislative intention in this section, as we construe its provisions, to abbreviate in any instance the period of time within which an action might be com- menced under the provisions of the statute of limitations. But it was the object and purpose of the section, we think, in all cases where death intervenes within eighteen months of and preceding the close of the ordinary period of limitation, to allow suits to be brought either by or against the personal representatives of such decedent within said period of eighteen months upon causes of action which, without that section, would have been barred by limitation during that period, and before suit was brought. Thus, it seems to us, that, under this section, while the ordinary period of limitation may possibly be en- larged, yet it can never be diminished or abbreviated in any case." n (m) K. S. 1881, 298. v. Grubb, 26 Ind. 419; Sanders v. San- (n) Harris v. Kice, 66 Ind. 267; ders, 48 Ind. 84; Vol. 3, p. 382. Hiatt v. Hough, 11 Ind. 101 ; Bauman 192 LIMITATIONS OF ACTIONS. [CHAP. 281. Where plaintiff has once brought his action and failed, time extended in certain cases. " If, after the com- mencement of an action, the plaintiff fail therein, from any cause ex- cept negligence in the prosecution, or the action abate, or be defeated by the death of a party, or judgment be arrested or reversed on appeal, a new action may be brought within five years after such determination, and be deemed a continuation of the first, for the purposes herein con- templated." This section applies to four classes of cases : 1. Where the plaintiff fails, without negligence, in the prosecution. 2. Where the action abates, or is defeated, by the death of a party. 3. Where judgment is arrested. 4. Where the judgment is reversed on appeal. The first is very indefinite, leaving the courts to determine, in each particular case, what is such negligence in the prosecution as would deprive the party of the benefit of the exception. It has been held, under this clause of the section, that where the plaintiff has, by mis- take, commenced his action in an erroneous form, so that it can not be maintained, it is not negligence in the prosecution, and will save his right to sue the second time within the five years. p But it must appear that the second cause of action js a continuation of the first, or rather that the two causes of action are the same ancj between the same parties;* 1 and where the plaintiff voluntarilv aban- dons the action he can not, by reason of its having been commenced, avail himself of the exception/ 282. Where the action abates or is defeated by the death of one of the paries. Under this clause of the statute no ques- tion is likely to arise. If one of the parties dies during the pen- dency of the action, and the cause is not such that his death would terminate the cause of action, the exception would apply. In most cases, the proper practice is to substitute the representative of the de- ceased party, in which case the action must be regarded as the same, and the statute of limitations would not affect the remedy. If the action is for a tort, and does not survive under the statute, no new action can be commenced, and no question could arise under this sec- tion. s (o) K. S. 1881, 299. (q) Sidener v. Galbraith, 63 Ind. P (p) Flournoy ?. The City of Jeffer- Xiblack v. Goodman, 67 Ind. 174-, sonville, 17 Ind. 169; McKinney v. Hawthorn v. The State, 57 Ind. 286. Springer, 3 Ind. 59; Sumner v. Cole- (r) Null v. The White Water Yal- man, 20 Ind. 486. ley Canal Co., 4 Ind. 431. (s) Iglehart's PI. and Pr. 87, 25. X.] LIMITATIONS OF ACTIONS. 193 283. "Where the judgment is arrested, or reversed on ap- peal. There is a marked difference between the reversal and arrest of a judgment. The reversal of a judgment is, in effect, the same as granting a new trial. The action is not terminated, and, therefore, the plaintiff could not be barred by the statute, independent of this section, if his action was commenced in time originally. It is other- wise in case of the arrest of a judgment. It has the effect to terminate the action at once, and the party has no remedy but to commence a new action.* The plaintiff, by virtue of this section of the statute, may commence his action a second time any time within five years. The section must not, however, be understood as limiting his right to sue the second time to five years, where the statute would not run its full time at the end of the five years if no suit had been commenced. The object of the section is to enlarge and not to diminish the time allowed under the statute. If, therefore, the statute has ten years yet to run when the judgment is arrested, the party has the full ten years in which to sue the second time ; but if the statute has less than five years to run, or has run its full time during the pendency of the first action, this section allows him the full five years in which to sue. CONCEALMENT. 284. Statute does not run where the defendant conceals the cause of action. " If any person liable to an action shall con- ceal the fact from the knowledge of the person entitled thereto, the action may be commenced at any time within the period of limitation after the discovery of the cause of action. " u The effect of this section is, that where the cause of action is con- cealed the statute does not commence to run until discovery. It was formerly the rule in equity that in actions growing out of fraud the statute did not commence to run until the cause of action was discov- ered, without reference to the question- whether the party liable had concealed the cause of action or not. v This section of our statute changes this rule. Actions for fraud stand upon the same footing with other causes of action, and the stat- ute commences to run, in that class of cases as in all others, when th- (t) Raber v. Jones, 40 Ind. 436; (v) Ang. on Lim., 30; Raymond Crawford r. Crockett, 55 Ind. 220. v. Simoridson, 4 Blkf. 77; Story's Eq (u) R. S. 1881, 300. Jur., 1521, 1521a. 13 194 LIMITATIONS OF ACTIONS. [CHAP. cause of action accrues, unless it is concealed. Some of the decided cases are not in harmony with the rule as just stated. Notwithstand- ing this section, it has been held that in cases of fraud the statute did not commence to run until the fraud was discovered, without any refer- ence to the question of concealment. w But later decisions are clearly to the effect that the statute commences to run before discovery unless the cause of action is concealed. 1 285. "What amounts to concealment within the meaning of the statute. The concealment must be something independent of the fraud constituting the cause of action ; must consist of some positive act on the part of the party liable, and must have the effect to conceal. It is not enough that the party remains silent, and his ad- versary fails to discover the cause of action. Nor is it sufficient that the party liable attempts by positive acts to conceal the cause of action. If the plaintiff has in fact discovered the cause of action, he can not avail himself of the exception by showing that the opposite party at- tempted concealment. There must be an actual concealment by the party liable to the action, and it must be subsequent to the time when the cause of action accrued, or, if prior, must be intended to prevent future discovery. y There is a late case that does not seem to be in harmony with these decisions. The facts of the case are thus briefly stated in the opinion : " On the 14th day of June, 1867, the defendant gave the plaintiff, in payment of a debt, a note on third persons, without indorsement, pur- porting to be due on the 25th day of April, 1868. Said note was signed by three persons, two of whom were sureties. The defendant, with the principal in the note, before it was transferred to the plaintiff, had altered the same, so as to make it fall due on said 25th day of April, 1868, instead of the 1st day of January, 1868. It not being paid on the 25th day of April, the time it purported, upon its face, to become payable, the plaintiff sued all the parties, and the sureties set- ting up the alteration, defeated the suit as to them, and the principal was insolvent. . . . This suit was instituted to recover the plaint- (w) Matlock v. Todd, 25 Ind. 128; (y) Boyd v. Boyd, 27 Ind. 429; Gray v. Stiver, 24 Ind. 174. Stanley v. Stanton, 36 Ind. 445; Earn- (x) Pilcher v. Flinn, 30 Ind. 202; hart v. Robertson, 10 Ind. 8; Jones v. Putter v. Smith, 36 Ind. 231 ; Wallace The State, 14 Ind. 120; Randolph v. ,: Metzker, 41 Ind 346; Boyd v. Boyd, The State, 14 Ind. 232; Free v. The 27 Ind. 429; Wynne . Cornelison. 52 State, 13 Ind. 324; Wynne r. Corneli- Ind. 312; Ware v. The State, 74 Ind. son, 52 Ind. 312 ; Jackson v. Buchanan, 181. 59 Ind. 390; Robinson v. The State, 57 Illd: 113. X.] LIMITATIONS OF ACTIONS. 195 iff's claim, as we have said, on the 27th day of June, 1873. The com- plaint recites the facts of the case, which showed a good cause of action on the original debt or for fraud. The defendant answered the statute of limitations of six years. The plaintiff replied that he had no notice of the alteration of the note uutil after the 25th day of April, 1868, and that this suit was brought within six years from that date." There was a demurrer to this reply sustained in the court below. The supreme court, in passing upon this ruling, say: "The caus of action in this case, whether it be the original debt or the fraud, did not arise till the plaintiff discovered the fraud practiced upon him in giving him in payment of a debt the altered note in question. The original debt, by the taking of the note, was postponed as to the time of its becoming due, and became due when it was discovered by the plaintiff that the pretended payment was fraudulently made in an article that was worthless." 2 No authority is cited to support the rule here laid down, and it is clearly in conflict with many well considered cases already cited, hold- ing that it is not enough that the fraud was not discovered, but there must be some positive act of concealment that prevents such discovery. None of these cases are referred to. It could not be maintained that the fraud in the transfer of the note was a concealment of the original cause of action for the debt. On the contrary, it was an admission that there was an indebtedness. Nor can it be said with any greater degree of reason that it postponed the time when the original indebtedness ma- tured by the transfer of a note that was worthless. If the note was worthless, it could no more have the effect to postpone the debt than to satisfy or pay it. The fraud would no doubt create a new cause of action, but the authorities are clear that the statute commences to run in actions for fraud from the time the fraud is perpetrated, unless the cause of action is concealed. The reply in this case did not allege that there was any concealment of either of the causes of action. The case must stand as one holding that the cause of action does not commence to run until the fraud is discovered. The case was evidently not well considered, and as it does not expressly overrule the long line of de- cisions in conflict with the language used by the court, it should have but little Aveight. The supreme court evidently did not regard it as changing the rule established in the early cases, as the old rule is clearly stated in a late case, in which the court say: " TJie concealment of the fad that a person is liable to an action to prevent the running of the statute of limita- tions under section 219, must be of a positive and affirmative cJiarader, cal- (z) Bescher v. Paulus. 58 Ind. 271. 196 LIMITATIONS OF ACTIONS. [CHAP. citlated to prevent the discovery of the liability, as by hiding the fact or avoiding inquiry concerning its existence. And inhere the party knows the fact, or is in possession of the means of detecting it, and neglects to bring his action ivithin the time limited by the statute, he will be deprived of his remedy." a , The action was for criminal conversation, and it was alleged that the defendant concealed the cause of action, by persuading the plaintiff's wife to deny the commission of the offense. It was held that this wa.s not a concealment of the cause of action within the meaning of the statute. NEW PROMISE. ACKNOWLEDGMENT. 286. Cause taken out of statute by acknowledgment or promise in writing. " No acknowledgment or promise shall be evi- dence of a new or continuing contract, whereby to take the case out of the operation of the provisions of this act, unless the same be contained in some writing, signed by the party to be charged thereby." 1 * This section of the statute is negative in its character, the law being, prior to its enactment, that a new acknowledgment or promise would take the case out of the statute, whether it was in writing or not, and this is still the law in most of the states. Under this section the new promise must be in writing, and signed by the party to be charged. 287. This exception applies only to actions on contract. By an early statute it was provided that no statute of limitations should ever be pleaded as a bar, or operate as such, to any action founded on an instrument or contract in writing, whether the same be sealed or unsealed, nor to running accounts between merchant and merchant. d The result of this statute was that no contract in writing could be barred by the statute of limitations, and if the original contract were not in writing, and a new promise in writing was made, such new promise constituted a new contract, and being in writing could not be barred. 6 It has been shown that our present statute is general in its terms, and applies to all classes of actions. The language of this section, however, is such that it may very properly be limited to actions grow- (a) Jackson v. Buchanan, 59 Ind. (d) Rev. Laws. 1831, p. 401, 12. 390. (e) Raymond v. Simondson, 4 Blkf. (b) R. S. 1881, 301. 77, 85; Neighbors v. Simmons, 2 Blkf. (c) Ketcham v. Hill, 42 Ind. 64, 81; 75; Hoyt r. Reed, 3 Blkf. 368; Spang- Kisler v. Sanders, 40 Ind. 78; Van ler v. McDaniel, 3 Ind. 275. Dorn v. Bodley, 38 Ind. 402; Neigh- bors v. Simmons, 2 Blkf. 75. X.] LIMITATIONS OF ACTIONS. 197 ing out of contract. The language is that " no acknowledgment or promise shall be evidence of a new or continuing contract." If the stat- ute is limited to actions on contract, the new promise should be re- garded as a continuation of the old contract, and the action should be on the original promise. But if the original cause of action were for a tort, the new promise could in no sense be considered as a continuing contract, and the action might be maintained on the new promise, in which case the statute pf limitations that would bar the original cause of action could not be pleaded. The word " acknowledgment," as used by the statute, is as applicable to actions for torts, or upon any other cause of action, as to those upon contract, and as the statute itself is applicable to all kirids of actions I see no reason why this section should not be construed so as to apply to all causes of action included in the statute of which it is a part. But it has been held by the su- preme court that the section applies only to actions originally arising upon promises or contracts/ In the case of Cunningham v. McKindley the court say: "This section, it will be perceived, relates only to causes of action originally arising upon promises or contracts, and does not, as we think, relate to continuing trusts, especially those arising by operation of law." If this case stood alone it would be entitled to but very little weight. It was decided in the case holding that no part of the statute of lim- itations applied to " continuing trusts," but upon that point, as I have shown, it has been overruled. There is, however, a later case in which the question was thoroughly considered, and the same limited meaning given to the section. In Niblack v. Goodman the court say: "It will be observed that the provisions of this section are wholly negative in their character. It defines what shall not be evidence of a new or con- tinuing contract, but it does not declare in terms what shall be evidence of such contract. It seems to us, however, that by implication, and per- haps by fair construction, this section provides that an acknowledg- ment or promise contained in some writing signed by the party to be charged thereby shall be evidence of a new or continuing contract, by which a case upon contract may be taken without the operation of the statute of limitations. We say a case upon contract, because the words new or continuing contract, as used in this section, necessarily imply the existence of an old or prior contract, upon which the ' case' is founded, which old contract has been renewed or continued by an ac- knowledgment or promise contained in some writing signed by the party to be charged thereby. The question presented for our decision (f) Cunningham v. McKindley, 22 Ind. 149; Niblack v. Goodman, 67 Ind. 174, 180. 198 LIMITATIONS OF ACTIONS. [CHAP. by the alleged error of the court below in overruling the appellant's demurrer to the second paragraph of the appellee's reply, is this : L a judgment a contract, or in, the nature of a contract in such manner and to such an extent that an acknowledgment or promise properly made in relation thereto will be evidence of a neiv or continuing contract, by which a ca*e founded on such judgment ivill be taken out of the operation of the statute of limitations f It seems to us that this question nust be answered in the negative." This case is directly in point, and must be decisive of the question. 288. What is a sufficient new promise. Having shown that the new promise or acknowledgment must be in writing, it is impor- tant, also, to determine what the writing must contain. No particular form is necessary, but by the express terms of the statute it must be either an acknowledgment of the old cause of action or a promise to pay the debt ; whether it is au acknowledgment or a promise, it must amount to an admission of a subsisting cause of action, because it is the existence of the old cause of action that upholds the new. g 289. Effect of acknowledgment or promise by one joint contractor. The question whether a promise or acknowledgment by one joint contractor will avoid the operation of the statute as to his co-contractors has been answered both ways in the adjudicated cases, some holding that the promise of one affected all alike ; others holding that his promise only affected his own liability, and that in such case judgment might be taken against him alone. In this state, the statute expressly provides that " the acknowledgment or promise of one joint contractor, executor, or administrator shall not render any other joint contractor, executor, or administrator liable under the provisions of this act." h And the plaintiff may take judgment against the joint con- tractor who makes the new promise, although the action as to the other contractors is barred.' 290. A joint contractor once released can not be made liable to his co-contractor, who has been compelled to pay the debt. The statute expressly provides that " neither a joint debtor or his representative, in whose favor the statute of limitations has op- erated, shall be liable to a joint debtor or surety, or their representa- (g) Goldsby v. Gentle, 5 Blkf. 436; v. Bodley, 38 Ind. 402; Ang. on Lim.. Spangler v. McDaniel, 3 Ind. 275; 270 et seq. Conwell v. Buchanan, 7 Blkf. 537; El- (h) R. S. 1881, 302. liott v. Mills, 10 Ind. 368; Van Dorn (i) R. S. 1881, 567. X.] LIMITATIONS OF ACTIONS. 199 fives, upon payment by such joint debtor or surety, or their representa- tives, of the debt or any part of it." j PART PAYMENT. 291. Effect of part payment. " Nothing contained in the pre- ceding sections shall take away or lessen the effect of any payment made by any person ; but no indorsement .or memorandum of any pay- ment made upon any instrument of writing, by or on behalf of the party to whom the payment shall purport to be made, shall be deemed sufficient to exempt the case from the provisions of this act." k This section does not change the effect of part payment, as the law was before its enactment ; the only effect of this statutory provision being that no indorsement made on the Avriting by the person to whom the payment purports to be made shall be deemed sufficient evidence of such payment. 1 292. What is part payment within the meaning of the statute. Effect is given to part payment on the ground that it con- stitutes an acknowledgment of an indebtedness. It must, therefore, be a payment of less than is due, and made as such by the party mak- ing the payment. It must also be made on account of the debt for which the action is commenced." 1 And if payment is made with a denial of further indebtedness, it will not take the case out of the statute. 11 The payment may be made either on the principal or interest. It is not necessary that the payment should be in money. It may be in property or by a negotiable note. p 293. By and to whom payment must be made. The part payment, to be effective against the statute of limitations, must be made by the party liable for the original indebtedness, and to the party to whom the debt is due, or some one authorized by him to ac- cept payment.* 1 (j) R. S. 1881, 306. (o) Conwell v. Buchanan, 7 Blkf. (k) R. S. 1881, 303. 537; Ang. on Lira., 240; 3 Parsons (1) Ketcham v. Hill, 42 Ind. 64, 81 ; on Con. 77. Kisler v. Sanders. 40 Ind. 78. (p) Ang. on Lim., g 240, 247 ; 3 Par- (m) Prenatt v. Kunyon, 12 Ind. sons on Con. 74. 174; Kisler v. Sanders, 40 Ind. 78; (q) Kisler v. Sanders, 40 Ind. 78, 83; Carlisle v. Morris, 8 Ind. 421; Ketcham Sibert v. Wilder, 22 Am. Rep. 28 (16 v. Hill" 42 Ind. 64; Elliott v. Mills, 10 Kan. 176); Kirby v. Mills, 24 Am. Ind. 368; Conkey v. Harbour, 22 Ind. Rep.460 (78 N.C. 124) ; Ang. on Lim., 196. 1246. (n) 3 Parsons on Con. 76. 200 LIMITATIONS OF ACTIONS. [CHAP 294. Will a new promise, acknowledgment, or part pay- ment by -an executor or administrator avoid the operation of the statute ? A doubt has been expressed by the supreme court whether a new promise or part payment by an executor or administra- tor could have the effect to avoid the statute/ and the authorities on the point are not uniform. The question seems not to have been de- cided in this state. The statute expressly provides that no acknowl- edgment or promise of one joint executor or administrator shall render the other liable, but this evidently refers to their personal liability as such executors or administrators, and not the liability of the estate. In the case of Riser v. Snoddy the court say: "It is also doubtful whether the executor or administrator of an estate can by promise take a debt out of the statute, and whether he is not bound to plead the statute of limitations in all cases." s In the case of Briggs v. Starke, 12 Am. Dec. 659, it is held that a new promise by one of several joint executors takes the case out of the statute. In a note to this decision, the learned editor has laid down the rules as decided by the courts of different states, and as the authorities upon the point are cited, and the reasons upon which they are based are fully and clearly stated, I take the liberty of inserting it here in full : "Executors' power to revive debt. Upon the power of an executor or an administrator to revive a debt due from the decedent, which was barred by the statute of limitations in his lifetime, the decisions are not uniform. The states wherein the courts have maintained that the power so to revive a debt does exist are Massachusetts,' Kentucky," New Jersey, v North Carolina, w and it seems in New Hampshire. x On the other hand, states 'whose courts have denied to executors and ad- (r) Riser v. Snoddy, 1 Ind. 442; Jen- Mass. 201; Manson r. Felton, 13 Pick, nings v. Kee, 5 Ind. 257. 206; Lamson v. Schutt, 4 Allen. 360; (s) Citing Thompson v. Peter, 12 Foster v. Starkie, 12 Cush. 324 ; Fisher "Wheat. 565; Peck v. Botsford, 7 Conn. v. Metcalf, 7 Allen, 209. 172; Ang. on Lim., 348 et seq. ; 2 (u) Citing Hord v. Lee, 4 Mon. 36; Kent's Com. 455 et seq., and notes. Northcuta. Wilkinson, 12 B. Mon. 408. But see Shreve v. Joyse, 13 Am. Rep. (v) Citing Shreve v. Joyce, 36 N. 417; s. c., 37 N. J. 44; Cobham v. J. 44. Adm'rs, 2 Am. Dec. 612; s. c., 2 Hay- (w) Citing Cobham c. Adm'r, 2 Am. wood, 6; Peck v. Botsford, 18 Am. Dec. Dec. 612. '.:> (7 Conn. 172); Briggs v. Starke, 12 (x) Citing Busvvell v. Roby, 3 N. Am. Dec. 659 (2 Mill. 111). II. 458; Hodgson v. White, 11 Id. 211 ; (t) Citing Brown v. Anderson, 13 Brewster v. Brevvster, 52 Id. 52. X.] LIMITATIONS OF ACTIONS. 201 ministrators this power are Connecticut/ Kansas, 2 Louisiana, 8 Missis- sippi, 13 Missouri, Ohio, d Pennsylvania, Texas/ Virginia, 8 and it seems New York. h " In other of the states the question has not been judicially deter- mined, the courts merely asserting what must be the nature of the promise in order to revive the debt. Such is the case with Maine ' and South Carolina.J although in Reigne v. Desportes, 1 Dudley, 118, 121, it is said that if the statute had barred the debt in the testator's life- time, the new promise of the executor made as such would not be binding. "The prevailing doctrine, it is seen, is that an executor or adminis- trator can not even by an express promise to pay revive a debt which had been barred by the statute of limitations during the lifetime of the decedent. The reasons for the rule are differently stated. Some of the cases proceed upon the ground, as taken in Drouillard v. Wil- son, 10 W. L. J. 385, where it is said ' that the duties of the adminis- trator are limited to collecting the debts due to and to the payment of those owing by the intestate. What right he has to be generous with the property of others to pay debts for which there exists no legal lia- bility against the estate, I could never comprehend.' It is also urged iu support of the rule that the statute extinguishes the debt; that the new promise is a new contract supported by the moral obligation aris- ing from the original contract ; that in the case of an executor there is no such moral obligation, and, therefore, he can not bind the estate by a new promise. Still other decisions turn upon the construction of the local statutes. The contrary doctrine is based, by some of the decisions which sup- port it, upon the assumption that an executor or administrator repre- (y) Citing Peck v. Botsford, 7 Conn. (f) Citing Moore v. Hardison, 10 172; Isaacs v. Stevens, 13 Id. 50G. Tex. 467; Moore v. Hillebrant, 14 Id. (z) Citing Hanson v. Towle, 19 Kan. 312. 273. (g) Citing Fisher v. Duncan, 3 Am. (a) Citing Seveir v. Gordon, 21 La. Dec. 605; Seig v. Acord, 21 Gratt. 365; Ann. 373. 371. (b) Citing Sanders v. Robertson, 23 (h) Citing Bloodgood v. Bruen, 8 N. Miss. 389; Huntington v. Bobbitt, 46 Y. 370; McLaren r. Me Martin, 36 Id. Id. 528. 88; Heath r. Grinne;], 61 Barb. 189. (c) Citing Cape Girardeau Co. v. (i) Citing Oakes v. Mitchell, 15 Me. Harbison, 58 Mo. 90. 360; Bunker v. Athearn, 35 Id. 364. (d) Citing Drouillard v. Wilson, 10 (j) Citing Johnson v. Ballard, 11 W. L. J. 385. Rich. 181 ; Wilson v. Wilson, 1 Mc- (e) Citing Fritz v. Thomas, 1 Whart. Mullen's Eq. 331; Clarke v. Jenkins, 3 66; Clarke v. Maguire, 35 Pa. St. 259. Rich. 340. 202 LIMITATIONS OF ACTIONS. [CHAP. sents the decedent to the extent of the assets in his hands, and that a promise made by him, in his representative capacity, to pay a debt should have the same effect as if it had been made by the decedent himself. k " The early Massachusetts cases were led to take this view of the question, because they considered the statute of limitations to be a mere statute of presumption, and, therefore, that an acknowledgment, by a personal representative, of the justness of a barred debt, would make the debt a legal claim against the estate. 1 " Subsequent adjudications, in that state, upon this question, have not repudiated the reasoning of the former decisions. But in Foster v. Gtarkey, 12 Cush. 324, still another ratio decidendi was adopted, founded upon the construction of their local statutes, and in an applica- tion of tb> principles of the general statute of limitations, as evidenced by the practice in that. state. 'The practice uniformly is to declare upon the original cause of action, and if the statute of limitations is set up as a bar, then the plaintiffs offer evidence of the payment, promise, or unequivocal acknowledgment of the debt, the effect of which is to avoid the bar, and the recovery is had on the original cause. Such being the effect of the payment or acknowledgment, there seems no reason why it should not have the same effect when made by the per- sonal representative of the debtor, who has full knowledge of the affairs of the estate and a full legal control and disposing power over the same as if made by the debtor himself. It is equally proof that the debt is due and unpaid and remains in force.' " A promise, by one of two or more executors, to pay a barred debt, is regarded, in those states that concede the power to the personal repre- sentative to revive the debt, to be as effectual as a promise by all of the executors. " An acknowledgment of the debt is sufficient to take the debt out of the statute, although made by the executor or personal representative," and so also is a part payment. But in South Carolina and in Maine, it is affirmed that nothing but an express promise will revive the debt. p " Where the debt is not barred at the time of the decedent's death, a (k) Citing Northcutt v. Wilkinson, Brown v. Anderson, 13 Mass. 201; 12 B. Mon. 408. Hanson v. Felton, 13 Pick. 206; Lam- (1) Citing Brown v. Anderson, 13 son v. Shutt, 4 Allen, 359. Mass. 201. (o) Citing Foster v. Starkey, 12 (m) Citing Shreve v. Joyce, 36 N. Cush. 324; Fisher v. Metcalf, 7 Allen. J. L. 44; Northcutt U.Wilkinson, 12 209. B. Mon. 408; Cobham v. Adm'r, 2 Am. (p) Citing Oakes ?-. Mitchell. 15 >fe. Dec. 612. 360; Wilson v. Wilson, 1 McMullan's (n) Citing Hord r. Lee, 4 Mon. 36; F.q HH1. X.] LIMITATION'S OF ACTIONS. 203 promise by the executor or administrator to pay such claim will furnish a new period from which the statute is to run. This principle is gen- erally admitted, even in those states which deny to the personal repre- sentative the power to revive a debt ; as a still existing demand upon the estate is such a legal charge as the executor or administrator is empowered to recognize and pay. q " Tlie special statute limiting the time within which an action must be brought against the executor in his official capacity must be pleaded by him, nor can he by any promise or acknowledgment take the case without the provisions of the act." r It will be seen at once, from this citation of authorities, that in this state, where the supreme court has gone no farther than to express a doubt upon the point, no definite rule can be laid down. The better rule seems to be that where the debt is barred by the statute of limita- tions in the lifetime of the debtor, the executor or administrator has no power to make such a promise, acknowledgment, or part payment, as will revive the debt, but where the debt is not barred at the death of the debtor such promise, acknowledgment, or part payment will bind the estate. PARTNERS. 295. A promise or part payment by one partner will bind the firm if made before dissolution, but not if made after- ward. The promise of one partner is the promise of all, and, there- fore, the promise of one takes the case out of the statute as to all, if the debt is one within the business of the partnership. 8 But it is other- wise after dissolution. With the dissolution of the partnership the power of one of the partners to bind the firm by any contract he makes .ceases, and his acknowledgment, promise, or part payment, will bind himself alone. 1 In England, and some of the states, the rule is the other way. An interesting discussion of the whole question will be found in the note to Chardon v. Oliphant, Am. Dec. 572, where the leading au- (q) Citing Bishop i>. Harrison, 2 (s) Story on Part., $ 107, 323, 324; Leigh, 532; Seigh v Aeord, 21 Gratt. Parsons' Part., 184, 185, 186, 187, 188, 365, 370; Heath v. Grinnell, 61 Barb. 189, 190 and notes. 189; McLaren v. Martin, 36 N. Y. 88; (t) Kirk v. Hiatt, 2 Ind. 322; Yandes r raw ford v. Childress, 23 La. Ann. v. Lefavour, 2 Blkf. 371 ; Chardon v. <4; Walker r. Cruikshank, Id. 252; Oliphant, 6 Am. Dec. 572 and note (3 iiiccession of Romero, 29 Id. 493; Brevard, S. C. 183); Levi v. Cadet, 17 Ciriffin v. The Justices, 17 Ga. 96. Am. Dec. 650 and note; 17 Sergeant & (r) CitingS Williams on Ex., g 1803, Rawle. 126; Story on Part., 324 et note q, 6 Am. ed. seq. ; Dickerson r. Turner. 12 Ind. 223; Conkey v. Barb, 22 Ind. 196. 204 LIMITATIONS OF ACTIONS. [CHAP. thorities, both in England and in this country, are cited. The rule in this state, that the partner has no such power after dissolution, is based upon the ground that the promise or part payment is a new contract, and not a mere admission of liability on the original debt. In the case of Kirk v. Hiatt, 2 Ind. 322, it is said : " This seems to be the turning point of the question, which has been much discussed, whether an acknowledgment by one partner, made after the dissolu- tion, binds the other partners so as to revive a partnership debt other- wise barred by a statute of limitations. The better opinion seems to be that it does not, because a promise, to be sufficient to revive a debt which has become extinct, must be founded upon a new contract, though springing out of and supported by the original consideration." Accordingly, it is held that while the promise, acknowledgment, or part payment will not revive the statute of limitations, on the ground that it can only be effective as a new contract, admissions made by one partner connected with the partnership business will bind the firm even after dissolution. But, in order to have this effect, the admission must be made at the time of transacting the partnership business, and be directly connected with it, thus placing the admissions of a partner on the same footing with those of an agent." CITIZENS OF BELLIGERENT POWERS. 296. The statute of limitations does not run between citi- zens of different belligerent powers during the existence of war. The question as to the effect of the existence of war upon the statute of limitations, where the parties to the contract belonged to the different belligerent powers, came before our supreme court in the case of Perkins v. Rogers, 35 Ind. 124, and was thoroughly and exhaustively considered in the able opinion delivered by Buskirk, J.; the proposi- tions laid down by the court, which seem to cover the whole ground, are given here as a full and correct statement of the law : "The foregoing authorities clearly establish the following proposi- tions : "First. That the war-making power is, by the constitution, vested in congress, and that the president has no power to declare war or con- clude peace, except as he may be empowered by congress. "Second. That the existence of war and the restoration of peace ar<- to be determined by the political department of the government, and that such determination is binding and conclusive upon the courts, and [u) Kirk v. Hiatt, 2 Ind. 322; Taylor v. Hilyer, 3 Blkf. 433; Tandes v. La*favour, 2 Blkf. 371. X.] LIMITATIONS OF ACTIONS. 205 deprives the courts of the power of hearing proof, and determining as a question of fact either that war exists or has ceased to exist. "Third. That the courts will take judicial notice of the existence of war or the restoration of peace, when proclaimed by the president. "Fourth. That the late rebellion did not become a civil war, and was not governed by the rules of war, until the 16th of August, 1861, when the president issued his proclamation under and in pursuance of the act of congress of July 13, 1861. "Fifth. That civil war is governed by the same rules as a foreign war, and the legal consequences are the same. "Sixth. That the proclamation of the president placed all the inhab- itants of the State of Louisiana in a state of insurrection, made them the enemies of the United States and the inhabitants of the adhering states, and rendered all commercial intercourse unlawful, except such as might be carried on under and by virtue of a special license and permit of the president, under the rules and regulations prescribed by the secretary of the treasury. "Seventh. That all contracts made during the war by belligerents, and not licensed and permitted by the president were absolutely void. "Eighth. That contracts made prior to the war were suspended during the existence of such war ; that the remedy upon such contracts was suspended until the restoration of peace, when the debt and the remedy revived. "Ninth. During the existence of the war an inhabitant of a state in rebellion had no right to institute or maintain any suit in any court in the adhering states, and that consequently the statute of limitations did not run against such person during the existence of the war. "Tenth. That the only legal effect of the occupation of the city of New Orleans was to authorize the president to exercise the discretion- ary power vested in him by the proviso to the fifth section of act of congress of July 13, 1861 ; that by said act of congress the president was authorized to license and permit limited commercial intercourse ; that such persons as had a license and permit from the president might lawfully trade ; that such license and permit did not confer any right beyond that of trading ; that no citizen of the State of Louisiana had the lawful right to carry on commercial intercourse without he had a license and permit from the president, issued in strict conformity to the rules and regulations prescribed by the secretary of the treasury ; that such occupation did not restore peace or release the inhabitants thereof from the legal consequences of their alienage and enmity, or give them a personal standing in our courts. "Eleventh. That the plaintiff, being an inhabitant of the State of 206 LIMITATIONS OF ACTIONS. [CHAP. Louisiana during tne war, was the enemy of all the inhabitants of In- diana, and consequently had no right, during the existence of the war, to institute and maintain an action on the contract sued on. "Tivel/Oi. That while the courts will take judicial notice that all the inhabitants of the State of Louisiana were in insurrection, they will not take judicial notice that any of such inhabitants maintained a loyal adhesion to the Union and constitution, or that any part of said state was occupied and controlled by the forces of the United States engaged in the dispersion of the insurgents, or that any particular per- son had a license or permit from the president to carry on commercial intercourse, but that a party relying upon such facts must allege and prove them. "Thirteenth. That while actual hostilities ceased in April, 1865, peace, with its legal consequences, was not restored until the 20th of August, 1866, when the president issued his proclamation proclaiming that peace existed throughout the land. "Fourteenth. That no part of the account sued on was created during the existence of civil war and when commercial intercourse was un- lawful. "Fifteenth. That the time that intervened between the 16th of Au- gust, 1861, and the 20th of August, 1866, is not to be included in de- termining whether this action is barred by the statute of limitations, and that excluding such time the action is not barred." v The propositions laid down by the court have been thus fully given, because of the clear statement -of the many questions raised in the case, and the conclusions reached by the court involving the consequences (v) Perkins v. Kogers, 35 Ind. 124, Emory, 5 Dall. 51; Ware v. Hylton, 3 167, citing Prize Cases, 2 Blkf. 635; Id. 199; The Rebekah, 1 C. Rob. Jackson Ins. Co. v. Stewart, 6 Am. Adm'r, 190; The Rapid, 1 Gallis, 295; Law Reg. 735; Allen v. Russell, 3 Am. Jecker v. Montgomery, 18 How. (U. Law Rej;., N. S. 361 ; Dean v. Nelson, S.) 110; Griswold v. Waddington, 16 10 Wall. 158; Hanger v. Abbott, 6 Johns. 438; United States v. Ander- Wall. 532; The Adventure, 8 Cranch. son, 9 Wall. 56; 14 U. S. Stat. at 221; The Anna, 3 Wheat. 435; The Large, 422; The Venice, 2 Wall. 258 ; Mariana, 6 C. Rob. Adm'r, 24; The The Reform, 3 Wall 617; The Peter- Schooner Sophie, Id. 138; The Falcon, hoff, 5 Wall. 28; Mrs. Alexander's Id. 194; The Eliza Ann, 1 Dods. 244; Cotton, Id. 404; The United States v. The Flatina, Id. 450; 3 Phillm. Int. One Hundred Barrels of Cement, 3 Law, \ 461 ; The Fuffren Maria Schroe- Am. Law Reg., N. S. 742; The United der, 3 C. Rob. Adm'r, 147; The Pearl, States v. One Hundred and Twenty- Id. 199; The Boede-5 Lust, Id. 207; nine Package?, 2 An;. Law Reg., N. S. The Eenrom, 2 Id. 1 ; The Francis, 8 430; 12 Stat. at Large, 225, 257; The Cranch, 354; The Frances, Id. 418; Grapeshot, 9 Wall. 129. Bolchos v. Darrell, Bee, 74; Rapalje v. X.] LIMITATIONS OF ACTIONS. 207 of the war as affecting contracts entered into between citizens of the two sections of the country before and during its existence. JOINT CONTRACTS. 297. Practice where one of several persons entitled to bring a joint action is barred by the statute. The statute pro- ides: " In cases where part only of the persons entitled to bring an ac- tion are barred by the statute of limitations, all may be joined as plaint- iffs ; and when it shall appear to the satisfaction of the court, by ad- mission or otherwise, that part of the plaintiffs are barred by the statute, thd court, upon motion, shall order the names of such plaint- iffs to be stricken from the record, and the action may be prosecuted by those not barred."" This section does not excuse the joinder of all of the parties plaint- iff in an action on a joint contract. They should all be joined, not- withstanding some of them may be barred by the statute. The supreme court has not been called upon to construe this sec- tion. It can have no force where the question whether part of the plaintiffs are barred or not is controverted. In such case the court could not dispose of the question summarily upon a mere motion. The parties have a right to have the question of the statute of limitations tried. The evident intention of the legislature was to furnish a means by which parties who Avould otherwise have to be joined as plaintiffs might avoid the expense of a trial when it was admitted that they were barred by the statute. Such cases are not likely to oc- cur frequently in practice. MECHANICS' LIENS. 298. Limitations in case of mechanics' liens. The special statute limiting the time in which actions to enforce mechanics' liens shall be brought deserves especial consideration. The statute limits the time in Avhich notice of an intention to hold the lien shall be given to sixty days after the completion of the building or repairs. 5 It also provides that the person having such lien may commence his action " at any time within one year from the completion of the work or fur- nishing the materials, or if a credit be given from the expiration of the credit." y The provision that the action shall be brought within one year after the completion of the work or material furnished, or from the expiration of the credit, is the same in effect as to provide (w) R. S. 1881. 267. (y) R. S. 1881, 5297; Lawton r. (x) R. S. 1881, 5296. Case, 73 Ind. 60; Sup'l 11. S. 1881, ft 6951-69CG. 208 LIMITATIONS OF ACTIONS. [CHAP. that the action shall be brought within a year after the cause of action accrues. The two limitations, one of the time of giving the notice and the other of bringing the action, are in no way dependent upon each other so far as the time is concerned, but the failure to give the notice in time takes away the cause of action, and no action on the lien can be maintained. The notice must be filed within sixty days after the work is completed or material furnished, and the fact that n credit is given does not extend the time. It is otherwise in bringing the action. Some of the earlier cases hold that the notice may be given within sixty days after tlie debt becomes due, but these cases are founded on a statute requiring the notice to be given within the time stated in the decisions. z Under the present statute it is held that it is not sufficient to file the notice within sixty days of the time when the debt becomes due. It must be within sixty days after the completion of the building, although that may be before the party is entitled to demand payment. 8 299. Time ceases to run from the time notice is left for record. The statute requires that the notice shall be filed in the re- corder's office within sixty days. It was held in one case that the notice must be recorded within the time, and that the leaving of the notice with the recorder was not a compliance with the statute. b But the supreme court has held the other way in a number of cases decided both before and since- this decision, and Falkner v. Colshear has been expressly overruled on this point. 300. Notice must show if a credit has been given, or the time in which to sue will be limited to one year from the completion of the work. The statute fixes two different times from which the statute may run, depending upon whether a credit has been given or not. For this reason, the notice should so state if a credit has been given and when the credit expires. If the notice fails to state that a credit has been given, the mechanic must bring his ac- tion within one year from the completion of the work, at lea.-r us against subsequent purchasers. They have a right to presume that the cause of action accrued at the time the work was completed, or the (z) Robinson v. Marney, 5 Blkf. 329 ; McKinney v. Springer, 6 Blkf. 511; Kev. Stat. 1838, p. 413, 7. Goble v. Gale, 7 Blkf. 218; Green r. (a) The City of Crawfordsville v. Green, 16 Ind. 253; Waldo v. Walters. Brundage, 57 Ind. 262. 17 Ind. 534 ; Sharpe v. Clifford, 44 Ind. (b) Falkner v. Colshear, 39 Ind. 201. 346; Wilson v. Hopkins, 51 Ind. 231 ; (c) Millikin ?. Armstrong, 17 Ind. The City of Crawfordsville v. Brun- 456; Robinson v. Marney, 5 Blkf. 329; dage, 57 Ind. 262. X.] LIMITATIONS OF ACTIONS. 209 material furnished, and may buy upon the faith of this presumption after the year from the completion of the work, and the lien can not be enforced against the property in their hands. d According to the syllabus of the case of Schneider v. Kolthoff, no action could be brought under such a notice, even against the owner of the property who contracted the debt, after the expiration of a year from the completion of the work. The decision does not so hold. The rule is limited to actions against subsequent purchasers, and is baseu upon the theory that the purchaser has the right to presume that no credit was given. This reason does not apply to the debtor, as his knowledge must be equal to that of the other party to the contract. The court say the notice is given for the benefit of the public, but the statute does not require that it should state that a credit was given, and as against the debtor there is no reason why the notice should be required to go beyond the requirements of the statute. 301. Limitation does not apply to notice required by sec- tion 5295 to be given by sub-contractors. Section 5295 of the statute provides that a sub-contractor, journeyman, laborer, or material man may, by giving the owner of the building notice, render him lia- ble for work done or material furnished. 6 This notice is in order to fix a personal liability upon the owner of the property, and not to acquire a lien upon the property itself. The section limiting the time in which notice shall be given and the action brought does not apply to the rights given under this section. The notice authorized by the section may be given at any time before the owner has paid the original con- tractor, and the right to bring the action is only affected by the general statute of limitations/ 302. When statute commences to run in such cases. Some question might arise as to the time when the statute of limitations would commence to run in such a case. If the sub-contractor's claim is due at the time the notice is given, and there is sufficient due from the owner to the original contractor to pay his claim, his cause of ac- tion would accrue at the time notice is given ; but if his own claim is not due, there is no reason why he should be allowed to enforce it against the owner of the building until it is due. If the money to be (d) Schneider v. Kolthoff. 59 Ind. (f) Barker v. Buell, 35 Ind. 207; 568; Gilbert v. Plant, 18 Ind. 308. O'Halloran v. Leaehey, 39 Ind. 150; (e) R. S. 1881, 5295. The School Town of Princeton v. Gib- hart, 61 Ind. 187. 14 210 LIMITATIONS OF ACTIONS. [CHAP. paid by the owner to the original contractor is not due when the notice is given, he could not be compelled to pay the sub-contractor before his contract requires him to pay. In either of these cases, the statute would commence to run when the claim is due. HEIRS, DEVISEES, AND DISTRIBUTEES. 303. Limitation of actions against heirs, devisees, and distributees for the debts of the decedent. The right of a creditor of the decedent to maintain an action against the heirs, de- visees, or distributees is dependent upon his disability. And the disa- bility must arise either from, insanity, infancy, or his being out of the state, and one or the other of these disabilities must exist for six months prior to the final settlement of the estate. 8 If no such disa- bility exists, he must file his claim against the estate before final set- tlement ; and the fact that no administrator has been appointed, gives him no cause of action against heirs, devisees, or distributees. 11 The heirs are only liable to the extent of the property received by each, and the liability does not exist unless there has been a final set- tlement of the estate. 4 And where the heirs become liable by reason of the disability of the creditor, the action must be commenced within one year after the disability is removed. J THE UNITED STATES AND STATE OF INDIANA. 304. The United States not barred and the State of In- diana not barred by the statute, except as to sureties. Prior to the statute providing otherwise, the rule was well settled by authority that the United States and the state would not be barred by any limitation fixed by the statute. k But our code, as originally en- acted, provided expressly that the state and the United States should be barred as other persons. 1 The revised code provides that " limitations of actions shall not bar the State of Indiana except as to sureties," and this section is a substi- tute for the original section on the same subject. 111 If the rule is that the state would not be barred unless it was so (g) R. S. 1881, 2442. (j) The Northwestern Conference of (h) Wilson v. Davis, 37 Ind. 141; Universalists v. Myers, 36 Ind. 375; The Northwestern Conference of Uni- Rinard v. West, 48 Ind. 159. versalists v. Myers, 36 Ind. 375; Bu- (k) Ang. on Lim., g 37, and authori- senback v. Healey, 93 Ind. 450. ties cited. (i) The Northwestern Conference of (1)2 B. S. 1876, p. 129, \ 224. Universalists v. Meyers, 36 Ind. 375; (m) K. S. 1881, \ 304. Stevens v. Tucker, 87 Ind. 109. X.] LIMITATIONS OF ACTIONS. 211 expressly provided, the provision that the limitations should not bar the state is superfluous. As the section now stands, the United States not being named in the act would not be barred, and the state is not barred except as to sureties." JUDGMENTS AND DECREES. 305. Limitations of judgments and decrees. " Every judg- ment and decree of any court of record of the United States, or of this or any other state, shall be deemed satisfied after the expiration of twenty years." It was held under the statute of 1843, which was the same in effect as this section, that the statute was not a bar to an action after twenty years, but only raised a presumption of payment. p But the point has been clearly decided the other way under the pres- ent statute of limitations. q After quoting the section under consideration, the court say: "In the case under consideration the question is governed by the code of 1852, which contains the following provision, viz. : ' Sec. 211. The fol- lowing actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards : " ' 5. Upon contracts in writing, judgments of a court of record, and for the recovery of the possession of real estate, within twenty years.' " This provision would seem to be conclusive upon the question in- volved, but it is insisted that it is controlled by section 225. . . . "We can not concur in this position. The two provisions of the statute referred to relate to different matters ; the first limits the time within which the action may be brought after the cause thereof accrued, the other relates to the question of payment or satisfaction, and de- clares that such judgments shall be deemed satisfied after the expira- tion of twenty years. . . . "The case may come within one of the exceptions enumerated in sections 215 and 216, and the action may not, therefore, be barred, though more than twenty years may have elapsed after the cause of action accrued, and still the presumption of satisfaction would arise under section 225." HOW QUESTION RAISED. 306. How the question of the statute of limitations may be raised. The manner in which the question of the statute of limit- (n) People v. Gilbert, 18 Johns. 228. 224; Barker v. Adams, 4 Ind. 574; (o) K. S. 1881, 305. Hendricks v. Comstoek, 12 Ind. 238. (p) Keddington v. Julian, 2 Ind. (q) King v. Manville, 29 Ind. 134. 212 LIMITATIONS OF ACTIONS. . [CHAP. ations may be raised differs in different states. In most of the states there is an express provision that the defense must be specially pleaded by way of answer/ We have no such statutory provision. The au- thorities in this state, on this point, are numerous and conflicting ; but the rule, as now established, is that the question may be raised by de- murrer in two classes of cases: 1. Where the limitation is absolute without any exception, and the complaint shows, on its face, that the cause of action is barred ; 2. Where the complaint shows, on its face, that the action is commenced after the time limited, and that none of the exceptions provided in the statute, in that class of actions, exist. 9 The rule in equity was, that the objection could be taken advantage of by demurrer where it appeared on the face of the bill.' But where the defect was not apparent, on the face of the bill, it must be presented by a plea. u The result of this rule was, that if the bill showed, upon its face, that the action was barred, it was incumbent upon the plaintiff to show that some one of the exceptions existed that would take the case out of the operation of the statute, or the bill would be subject to demurrer, and this is the rule in some of the states. 7 307. Statute must be specially pleaded. If the statute can not be reached by demurrer, under the rules laid down in the foregoing section, it must be specially pleaded by way of answer, and can not be proved under the general denial. * But ii may be in actions against decedent's estates. (1) (r) Pom. Rem., $ 713, 714. 146; Humbert v. Trinity Church, 7 (s) Hanna v. The Jeffersonville, etc., Paige, 195; Sturgis v. Barton, 8 Ohio R. R. Co., 32 Ind. 113; Potter v. St. 215; Bliss' Code PL, 355; Kene- Smith, 36 Ind. 231 ; Perkins v. Eogers, dy v. Williams, 11 Minn. 314; McAr- 35 Ind. 124; Harlan v. Watson, 63 die v. McArdle, 12 Minn. 98; Hoyt v. Ind. 143; Baugh v. Boles, 66 Ind. 376; McNeil, 13 Minn. 390; Parker v. Berry, Cravens t?. Duncan, 55 Ind. 347 ; Kent 12 Kans. 351 ; Brennon v. Ford, 46 v. Parks, 67 Ind. 53. Cal. 7, 12; Kobinson v. Allen, 37 Iowa, (t) Story's Eq. PI., 484. 27; Spearer v. Walsh, 30 Iowa, 361; (u) Story's Eq. PI., 750. Springer v. Clay Co., 35 Iowa, 241 ; (v) Ang. on Lim. (4th ed.J 29; Vase v. Woodford, 29 Ohio St. 245; Van Hook v. Whitlock, 7 Paige, 375; People v. Rensselaer Ins. Co., 38 Barb. Wisner v. Barnet, 4 Wash. C. C. 631; 323; Estee's PI. and Forms, 743, 144. Muer v. Trustees, etc., 3 Barb. Ch. 477 ; (w) The Jeffersonville, etc., R. R. Dunlap v.Gibbs, 4 Yerg, 94, 1 Dan. Ch. Co. v. Hendricks, 41 Ind. 48, 62; Pot- Pr. 584 ; Deloraine u.Browne, 3 Bro.Ch. ter v. Smith, 36 Ind. 231; McCallum C. 633; Thomas v. Harvey's Heirs, 10 v. Pleasants, 67 Ind. 542; Harlan v. Wheat. 146; Elmendorf v. Taylor, 10 Watson, 63 Ind. 143; Bliss' Code PI. Wheat. 152; Miller v. Mclntire, 6 Pet. 355; Pom. Rem., 714; Huston v. 61; McKinney v. McKinney, 8 Ohio Crayhead, 23 Ohio St. 198, 219 ; Daven- St. 423; Chiles v. Drake, 2 Met. (Ky.) port v. Short, 17 Minn. 24. (1) Zeller v. Griffith, 89 Ind. 80. X.] LIMITATIONS OF ACTIONS. 213 308. Statute need not be pleaded in actions to recover real estate. There is an exception to the rule in the case of actions to recover real estate. In this class of actions it is provided, by stat- ute, that the defendant may give in evidence every defense to the ac- tion that he may have, either legal or equitable, under the general de- nial. 1 The question whether the statute must be specially pleaded in a partition proceeding or not, was presented to the supreme court in a late case; y but the question was met with a " Query : Whether, in sucli a case, the statute ought to be pleaded so as to allow the plaintiff to reply the exceptions ? " There is no reason why the statute should not be specially pleaded in partition proceedings as in other cases. The exception to the rule, in actions to recover real estate, is based upon a special statute that applies to that class of actions alone. 309. Exceptions to the statute must be specially pleaded by way of reply. The rule in this state, that the statute of limita- tions must be pleaded by way of answer, is based upon the ground that the plaintiff should not be required to allege the exceptions in his complaint, which would be necessary if the question could be pre- sented by demurrer. It is held, therefore, that the plaintiff may meet the plea of the statute of limitations by a special reply, alleging any of the exceptions that will take the case out of the operations of the statute. The exception must be specially pleaded, and can not be proved under the general denial, except where the defendant is not re- quired to answer the statute specially. 2 310. May plead exceptions in supreme court. On motion to dismiss in the supreme court, on the ground that the appeal is not taken in time, the appellant may plead any of the exceptions that will avoid the statute.* It was held, in the case cited, that it was not necessary for the ap- pellee to plead the statute of limitations in bar of the appeal, but that the question was properly raised on a motion to dismiss. And that the appellant might avoid the motion by pleading the exception. But the appellee is not bound to resort to a motion to dismiss. He may, if he sees proper, plead the statute. In either case the appellant may meet the question presented by pleading the exception, thus presenting a question of fact to be determined by the court. lx) R. S. 1881, 1055; Vanduyn v. (z) Strong v. The State, 57 Ind. 4'JS; Hepner, 45 Ind. 589; Brown v. Maher, Riser v. Snoddy, 7 Ind. 442; Kent v. 68 Ind. 14; Bliss' Code PI., 356. Parks, (57 Ind. 53. (y) Kent v. Taggart, 68 Ind. 163 (a) Buntin v. Hooper, 59 Ind. 589. 214 JOINDER OF CAUSES OF ACTION. [CHAP. CHAPTER XI. JOINDER OF CAUSES OF ACTION. SECTION. 311. The statute. 312. Effect of misjoinder. 313. Difference between misjoinder and duplicity. 314. Misjoinder of parties and causes of action in same complaint; how defect reached. 315. The liabilities of defendants must be the same. 316. Actions against different defend- ants may be joined, when. 317. Meaning of section 280 of the statute. 318. Actions for tort and on contract may be joined, when. 319. The rule in equity. 320 Causes that may be joined par- ticularly classified in Indiana. 321. Actions to set aside fraudulent conveyances made by debtor to different parties may be joined. 322. Meaning of term " cause of ac- tion." 323. Whether causes of action are im- properly joined determined from facts stated in complaint. 324. May be but one cause of action and several remedies. 325. In equity, if plaintiff had one general right, there was but one cause of action. 326. Meaning of phrase "money de- mands on contract." SECTION. 327. Money demand for a tort can not be joined with one on contract. 328. Statute liberally construed. 329. Difference between our code and those of other states. 330. In equity, the causes authorized by section 279 to be joined were treated as one cause of action. 331. Actions against husband and wife. 332. Guarantor can not be joined with maker of notes. INJURY TO PROPERTY. 333. Construction of the statute. INJURIES TO PERSON AND CHARACTER. 334. What included in this class. 335. Injuries growing out of the same wrong can not always be joined. 336. Causes of action must inure to plaintiff in the same right. 337. Damages to real estate ; when can be joined with action to recover possession. 338. Actions for specific performance and to avoid contracts for fraud and mistake. 339. To recover purchase-money, and for sale of real estate. 340. Actions for partition and to en- force lien on same real estate can not be joined. 311. The Statute. " The plaintiff may unite several causes of ac- tion in the same complaint, when they are included in either of the following classes : "First. Money demands on contract. XI.] JOINDER OF CAUSES OF ACTION. 215 "Second. Injuries to property. "Third. Injuries to person or character. "Fourth. Claims to recover the possession of personal property, with or without damages, for the withholding thereof, and for injuries to the property withheld. "Fifth. Claims to recover the possession of real property, with or without damages, rents, and profits for withholding thereof; and for waste or damage done to the land ; to make partition of and to deter- mine and quiet the title to real property. "Sixth. Claims to enforce the specific performance of contracts, and to avoid contracts for fraud or mistakes. "Seventh. Claims to foreclose mortgages; to enforce or discharge specific liens;to recover personal judgment upon the debt secured by such mortgage or lieu ; to subject to sale real property upon demands against decedents' estates when such property has passed to heirs, de- visees, or their assigns ; to marshal assets ; and to substitute one per- son to the rights of another ; and all other causes of action arising out of a contract or a duty, and not falling within either of the foregoing classes ; but causes of action so joined must affect all the parties to the action, and not require different places of trial, and must be sep- arately stated and numbered"' 312. Effect of misjoinder. The effect of misjoinder of causes of action under this statute is not of so much importance in practice as would at first be supposed. The misjoinder is reached by demurrer or motion to separate the causes of action. b The only effect of sustaining the demurrer on this ground is that the several causes of action must be separated and docketed as distinct ac- tions. 313. Difference between misjoinder and duplicity. The dif- ference between a misjoinder of causes of action and duplicity should be kept in mind. Misjoinder is the uniting in the same or different paragraphs of complaint causes of action that can not properly be joined under the statute. Duplicity is the joinder of different causes of action or defenses in the same paragraph. d And a paragraph of complaint that contains more than one cause of action is objectionable, (a) R. S. 1881, 278. (c) Lane v. The State, 27 Ind. 108; (b) R. S. 1881, 339; Burrows v. R. S. 1881, 340. Holderraan, 31 Ind. 412; Lane v. The (d) R. S. 1881, 338, sub. 3; Ibid., State, 27 Ind. 108 ; The C., H. & D. R. 347, sub. 3 ; Johnson v. The Craw- R. Co. v. Chester, 57 Ind. 297; Fritz fordsville, etc., R. R. Co., 11 Ind. 280. v. Fritz, 23 Ind. 388; Baker v. McCoy, 58 Ind. 215. 216 JOINDER OF CAUSES OF ACTION. [CHAP. on the ground of duplicity even where the statute authorizes the joinder of the two. Where they can be joined they can not be united in the same paragraph, but must be separately stated and numbered. 314. Misjoinder of parties and causes of action in same complaint ; how defect reached. There may exist, in the same complaint, a misjoinder of causes of action and of parties. Even where the causes of action belong to the same class, and might prop- erly be joined, if the different causes of action were against the same parties, yet if the several causes of action are not all against the same parties they can not be joined. There would, in such case, be not a misjoinder of causes of action, within the meaning of section 278 of the code, for the reason that the causes of action, if against the same defendant, would be properly joined under that section. The causes of action could not be joined, but the proper objection would be for a misjoinder of parties. And it has been held that, for this reason, a joinder of several causes of action, of the same class, but against dif- ferent defendants, can not be reached by demurrer, but must be reached by motion to separate the causes of action. 6 315. The liabilities of defendants must be the same. In the case cited, the action was brought on two administrator's bonds. On the first bond, the sureties had asked to be released, and a new bond had been given by the administrator, with other sureties. So far as the administrator was concerned the two actions were properly joined. The two causes of action were for money demands on con- tract, and therefore belonged to the same class. But, as to the sure- ties, their liabilities were different. One set of sureties were bound, on the first bond, up to the time of their release, while the liability of the second set of sureties commenced with the giving of the new bond. Clearly this was a misjoinder of parties. Two of the defendants, who were sureties on the second bond, de- murred to the complaint on the grounds : First. That the complaint did not state facts sufficient to constitute a cause of action. Second. That there was a defect of parties defendant. Third. That several causes of action were improperly united. The demurrer was overruled. The supreme court, in passing upon the question, say : "Another objection urged to the complaint is that there was a mis- joinder of causes of action. This court can not reverse a judgment (e) Lane v. The State, 27 Ind. 108. XI.] JOINDER OF CAUSES OF ACTION. 217 for an error of the court below, either in sustaining or overruling a de- murrer for misjoinder of causes of action. The misjoinder of causes of action referred to in section 50 of the code as a cause of demurrer is evidently where two or more causes of action, though between the same parties, but belonging to different classes, are united in the same suit, in violation of section 70 of the code. Here the causes of action belong to the same class, but are improperly united in the same suit, because they are against different defendants, making both a misjoinder of causes of action and of parties ; and the complaint is still further defective in uniting both causes of action in the same paragraph. These defects would clearly have rendered the complaint bad on de- murrer at common law, but it is otherwise under the code. The com- plaint shows a valid cause of action against each set of defendants, and the defect was not reached by the demurrer, assigning as a cause that the complaint did not state facts sufficient to constitute a cause of action. It should have been taken advantage of by motion, which was not done." 316. Actions against different defendants may be joined, when. The rule laid down in this case must not be understood to apply to all cases under the code. In some cases, several causes of action against different defendants may be joined without rendering the complaint objectionable, either on the ground of misjoinder of causes of action or of parties. The statute provides : " When the action arises out of contract, the plaintiff may join such other matters in his complaint as may be nec- essary for a complete remedy and a speedy satisfaction of his judgment, although such other matters fall within some other one or more of the foregoing classes. When several causes of action are united, belonging to any of the foregoing classes, the court may order separate trials for the furtherance of justice." f This section has been very liberally construed by the supreme court. It has been construed to authorize the joinder of causes of action growing out of contract, and for fraud and causes of action against different defendants. Thus it has been held that where the debtor has conveyed his real estate for the fraudulent purpose of avoiding the payment of his debts, the creditor may sue for the debt, and ask to r-et aside the conveyance of the real estate in the same action, even where the debt is on a note or account not a lien on the land. g (f ) R. S. 1881, I 280. v. Edwards, 39 Ind. 165; Love v. Mik- (g) Frank v. Kesler, 30 Ind. 8; als, 11 Ind. 227; Lindley v. Cross, 31 Wood v. Ostram, 29 Ind. 177; Lipperd Ind. 106. 21 13 JOINDER OF CAUSES OF ACTION. [CHAP. 317. Meaning of section 280 of the statute. It is difficult to determine what is meant by the section, but the construction given it by the supreme court brings it in conflict with every rule of good pleading. It certainly was not the intention of the legislature that different causes of action against different defendants, belonging to different classes of actions and requiring different kinds of relief, should be joined, but that actions belonging to different classes might be joined against the' same defendant. It does not authorize the joinder of other parties not properly joined under the section of the code reg- ulating the joinder of parties. Giving the code its most liberal con- struction, it could hardly be claimed that it authorizes the joinder of two parties in one action, where the judgment against one must be for a tort and the other upon contract, nor against one to enforce a con- tract made with the plaintiff, and the other to set aside a contract made between him and his co-defendant on the ground of fraud. h 318. Actions for tort and on contract may be joined, when. The terms of the statute are broad enough to authorize the joinder of a cause of action for a tort with one on a contract when it is against the same defendant, and necessary for a complete remedy and a speedy satisfaction of his j udgment, as the statute applies to " such matters as fall within some other one or more of the foregoing classes " without any limitations ; and when this is done " the court may order separate trials for the furtherance of justice." ' 319. The rule in equity. The rule established in equity as to the joinder of parties and causes of action was extremely liberal, and this liberality has been carried into the practice in Indiana. But the fact should not be overlooked that the code of this state differs materi- ally from that of every other state. The codes of other states are gen- eral in their terms authorizing the joinder of causes of action growing out of " the same transaction or transactions connected with the same subject of action. " j 320. Causes that may be joined particularly classified in Indiana. In Indiana the causes that may be joined are attempted to be particularly classified. Therefore, in determining what actions should be joined in this state, we must be governed by this classification, (h) Iglehart's Prac., p. 41, 35. Ch., 110, urt. 5, 2 ; Nebraska, ? 87, (i) K. S. 1881, 280. 88; Minnesota, 103; Florida, 117; (j) Pom. Rem., 438, citing New North Carolina, 126; South Carolina, York Code, 167 ; Wisconsin Ch. 125, 190. <}<} 31, 32; Ohio, ? 80, 81; Missouri XI.] JOINDER OF CAUSES OF ACTION. 219 save where it is broken into by section 280, and this section is expressly limited to actions arising out of contract. The supreme court has shown an inclination to give this section a broader construction than it is believed it should receive, and have evinced an intention to be governed by the rules that obtained in equity. This is more strongly marked in the cases already referred to, where actions for the debt and to set aside fraudulent conveyances were held to have been properly joined. If the equitable rule is to govern and not the strict classifica- _tion of the statute, these decisions are strongly supported by authority. 321. Actions to set aside fraudulent conveyances made by debtor to different parties may be joined. In an early case in New York, the question arose, whether in case of several convey- ances by the debtor to different parties, and the assignment of certain notes to other parties, one action could be brought against all of the parties to set aside the conveyances and assignments, and to subject the prop- erty, both real and personal, to the payment of the debt. The question was two-fold, as both the questions of the joinder of parties and causes of action were presented. It was held that the parties were properly joined, and that there was not a misjoinder of causes of action. k The case was thoroughly considered, and the opinion reached was unanimous. The decision has been qualified in some of the later cases, but the principle laid down is fully sustained by the great weight of authority in New York and other states. 1 322. Meaning of term "cause of action." In determin- ing the question whether or not there is a misjoinder of causes of (k) Fellows v. Fellows, 4 Cowen, Pr. 41 ; Bank of America v. Pollock, 682; s. c., 15 Am. Dec. 412. 4 Edw. Ch. 215; Boyden v. Lancaster, (1) See note to Fellows v. Fellows, 2 Patt. & H. 198; Gaines v. Chew, 2 15 Am. Dec. 427, citing Hammond v. How. U. S. 619; Bowers v. Keesecher, Hudson River, etc., R. R. Co., 20 Barb. 9 Iowa, 422; Busbee v. Sargent, 23 378; Boyd v. Hoyt, 5 Paige, 65; Reed Me. 269; Carroll v. Roosevelt, 4 Edw. v. Striker, 12 Abb. Pr. 502; Morton v. Ch. 211; Butler v. Spann, 27 Miss. Weil, 11 Id. 421; Lawrence v. Bank 234; Forniquet v. Forstall, 34 Id. 87 ; of Republic, 35 N. Y. 320; s. c., 31 Stone v. Knickerbocker Life Ins. Co., How. Pr. 502; Williams v. Neal, 10 52 Ala. 589; Rose v. Swann, 56 111. 37; Rich. Eq. 338; Planters', etc., Bank v. Lewis v. St. Albans Iron and Steel \V;ilker, 7 Ala. 926; Chase v. Searles, Works, 50 Vt. 477; Arnold v. Arnold, 45 N. H. 511 ; Bartee v. Tompkins, 4 11 W. Va. 449 ; Smith v. McLain, Id. Sneed, 623; Randolph v. Daly, 16 N. 654. See also, Bliss' Code PI., 115; J. Eq. 313; Wade v. Rusher, 4 Bos. Bid well v. Astor Ins. Co., 16 N. Y. 537; New York, etc., R. R. Co. v. 263; N. Y. Ice Co. v. Northwestern Schuyler, 17 N. Y. 592; s. c., 7 Abb. Ins. Co., 23 N. Y. 357. 220 JOINDER OF CAUSES OF ACTION. [CHAP. action, the " cause of action" should not be confounded with the object of the action or the remedy sought to be obtained. But one cause may entitle a party to several remedies, and where the cause of action is single, the fact that different kinds of relief are asked for does not render the complaint objectionable on the ground of misjoinder. The term "cause of action" can not be denned. Mr. Pomeroy, in his work on Remedies, complains that the courts have never attempted to define the meaning of the term, and attempts to do so himself. m The failure of the learned author to define the term, is proof of the wisdom of the courts in refraining from any such attempt. The dif- ference between the cause of action and the remedy is clearly and aptly illustrated, however, in the case of an action for a failure of the defendant to convey real estate that he has contracted to convey. The author says : " Let the facts which constitute the plaintiffs' primary right be a contract duly entered into by which the defendant agreed to convey to the plaintiff a parcel of land, and full payment by the plaint- iff of the stipulated price and performance of all other stipulations on his part. Let the delict be a refusal by the defendant to perform on his part. This is the cause of action and it is plainly single. From it there arise two remedial rights and two corresponding kinds of relief; namely, the remedial right to a compensation in damages, with the relief of actual pecuniary damages ; and the remedial right to an actual per- formance of the agreement and the relief of an execution and delivery of the deed of conveyance. If the plaintiff in one action should state the foregoing facts constituting his cause of action, and should demand judgment in the alternative, either for damages or for a specific per- formance, he would, as the analysis above given conclusively shows, have alleged but one cause of action, although the reliefs prayed for would be distinct, and would have belonged, under the old system, to different forums the common law and the equity courts." n 323. "Whether causes of action are improperly joined, determined from facts stated in complaint. The question whether two causes of action are improperly joined or not must be determined from the facts stated in the complaint, and not from the demand for relief. If but one cause of action is disclosed by the facts, the pleading is not objectionable, although the pleader may attempt to state more than one, or may claim different remedies. The com- plaint must state facts sufficient to constitute two causes of action, ' or there is no misjoinder. (m) Pom. Rem., '$ 452. 453. (o) Pom. Rem, 455; Bliss' Code . Tiedman, 34 Ind. 72; Keesecher 9 Iowa, 422; Bugbeev. Sar- The Cincinnati, etc., R. R. Co. v. Har- gent, 23 Me. 269; Lewis v. St. Albans ris, 61 Ind. 290; Hardwick v. Wilson, Iron and Steel Works, 5 Vt. 477. 40 Ind. 321 ; Clark v. Lineberger, 44 (r) R. S. 1881, \ 1285; Roberts v. Ind. 223 ; Keller v. Boatman, 49 Ind. Nodwift, 8 Ind. 339; Brock v. Par- 104. 222 JOINDER OF CAUSES OF ACTION. [CHAP. It is not necessary, however, that the two causes of action should be of the same nature. An action upon a special contract may be joined with one upon an account." 328. Statute liberally construed. In actions on money de- mands on contract, the supreme court has been very liberal in permit- ting the joinder of causes. In the case of the Southside Planing Mill Association v. The Cutler & Savidge Lumber Co., 64 Ind. 560, the association had purchased certain real estate from one Wheatley, and as part of the consideration assumed and agreed to pay certain notes given by Wheatley to other parties. A bond was also given by the association, with sureties conditioned for the payment of the notes. The appellee was the holder of one of the notes of Wheatley, assumed by the association. The note was not paid at maturity, and the action was brought by the holder of the note against Wheatley, the maker, and certain indorsers, the association and her sureties on the bond to recover on the note and bond in the same action. There was a demur- rer to the complaint, on the grounds that the complaint did not state facts sufficient, and that two causes of action were improperly joined. It was held that the payee of the note had the right to sue all of the makers and indorsers of the note and the principal and sureties on the bond in the same action. This may be regarded as a very strong case, but it is very clearly within both the letter and spirit of the code, which, as we have seen, authorizes different judgments to be rendered against different defendants. 7 There was Teally but one cause of action. Each of the parties was liable for the same debt ; but by virtue of dif- ferent instruments of writing. The rights of the parties could be prop- erly adjusted by the judgment. 1 " 329. Difference between our code and those of other states. The first subdivision of this section of the code differs mate- rially from that of the codes of other states. The right to join is lim- ited to money demands on contract, while the codes of other states au- thorize the joinder of several causes of action, " where they all arise out of contracts, express or implied. " x This would authorize the joinder of different causes of action, whether the relief demanded was for money or for specific relief. This is not permitted in this state, the express terms of the statute being against it. (u) Bates v. Dehaven, 10 Ind. 319; (w) Ante, 121; Pate v. The First Wilstach v. Hawkins, 14 Ind. 541. Nat. Bankof Aurora. 63 Ind. 254. (v) Ante, \\ 97, 116, 121. (x) Bliss' Code PI., 127. XI.] JOINDER OF CAUSES OF ACTION. 223 There is, however, another section bearing on the subject, which provides: " When the plaintiff desires to recover the possession of title papers, or other instruments of writing, or correct any mistakes therein, a separate action may be brought therefor ; or the possession of such title papers, or other instruments of writing, may be recovered, or mistakes corrected in any other action, when such recovery or correc- tion would be essential to a complete remedy. " y 330. In equity the causes authorized by section 279 to be joined were treated as one cause of action. Under the prac- tice in equity, the causes of action authorized by this section to be joined with others were not looked upon as distinct causes of action. The same joinder was permitted, but upon the ground that they were a part of the cause of action with which they were connected, and nec- essary to the plaintiff's recovery. 2 In Indiana they are properly joined by virtue of the statute, which authorizes the joinder, but recognizes them as distinct causes of action, by providing that in the cases named the action may be brought alone. 8 331. Actions against husband and wife. In Tobin v. Con- ney, 13 Ind. 65, the action was against husband and wife for the occu- pation of real estate. The wife had occupied the land before marriage, and after marriage she and her husband had continued in possession. It was held that for the time occupied by the wife alone the judgment must be against her separate property, and for the time occupied after the marriage the husband alone was liable, and therefore there was both a misjoinder of causes of action and of parties. 332. Guarantor can not be joined with maker of note. Guarantors of a promissory note can not be sued jointly with the makers. Their promise is a separate and distinct contract from that of the makers, and the cause of action is different. 1 " INJURY TO PROPERTY. 333. Construction of the statute. The second subdivision of the section authorizes the joinder of causes of action for "injuries to property." In most of the states both causes of action for injuries to (y) R. S. 1881, 279. 39 Ind. 318; Monroe v. Skelton, 36 (z) Bliss on Code PI., 116; Pom. Ind. 302; Conger v. Parker, 29 Ind. 380. Rem., 459 (b) Cole v. The Merchants' Bank, (a) Biggsbee v. Trees, 21 Ind. 227; 60 Ind. 350; Rich wine v. Scovill, 54 Hunter v. McCoy, 14 Ind. 528; Miller Ind. 150; ante, 122. v. Kolb, 47 Ind. 220; Free v. Meikel, 224 JOINDER OF CAUSES OF ACTION. [CHAP. person, property, and character may be joined, but this is not true in Indiana, as they are divided into distinct classes, injuries to person and character being joined in one class. The terms of the statute include injuries to both real and personal property, but where the two causes of action require different places of trial, as will frequently happen, the place of residence of the defendant fixing the venue in case of in- jury to personal property, and the place where the land is situate, iu case of injury to real property, they should not be joined. INJURIES TO PERSON AND CHARACTER. 334. What included in this class. The third subdivision au- thorizes the joinder of injuries to person and character, and includes every form of action for such an injury. In some of the codes, slan- der and malicious prosecution are distinguished from other injuries to person and character, and can not be joined. It is said by Mr. Bliss that " causes of action for assault and battery ; for false imprisonment; for trespass upon land; for an injury to per- sonal property; for conversion of such property, where the relief is in damages ; for nuisances ; for all kinds of negligence in the performance of a duty, either by the defendant or his servants ; for criminal con- versation ; for enticing a child or servant, or enticing or harboring a wife ; for seduction of a servant or daughter ; for fraud and deceit in sales, in false recommendations," etc., may be joined in the same action. In this state, slander and malicious prosecution may also be joined with the actions enumerated by the author; but injuries to personal property, as I have shown, belong to another class, and actions for the conversion of property, where the relief is in damages, should, if the action is for damages alone, be brought under subdivision second. If the action is to recover possession, it must be under the fourth, and the action for damages may be joined in the same complaint ; but actions for injuries to property can not be joined with those for injury to person or character. 335. Injuries growing out of the same wrong can not al- ways be joined. It does not follow from the fact that the injuries complained of grow out of the same wrongful act that they can prop- erly be joined. In the Cincinnati, Hamilton and Dayton R. R. Co. v. Chester, 57 Ind. 297, the action was brought by the appellee to recover damages (c) Bliss' Code PI., 129. XI.] JOINDER OF CAUSES OF ACTION. 225 for personal injuries inflicted upon himself, his wife, and minor child, and for the death of his minor child, caused by the same negligent act. It was held that the injuries to the appellee, his wife, and minor child, being caused by the same act, constituted but one cause of ac- tion, and might be joined not only in the same complaint, but in the same paragraph ; but that the injury causing the death of his child could not be joined with the other causes of action. This was held on the ground that the damages recovered for the injuries not causing death accrued to the appellee, while the damages for the death of the child must- inure to the benefit of the next of kin to the child. The court say: "Even if these two causes of action had been stated in separate paragraphs, we think that they ought not to have been united in the same complaint, or in the same action. For the one paragraph would have stated a cause of action in favor of the appellee in his own right, while the other paragraph would have stated a cause of action in the appellee's favor, but for the benefit of the next of kin of his de- ceased child, Emory B. Chester." d 336. Causes of action must inure to plaintiff in the same right. In every case, to authorize the joinder of causes of action be- longing to the same class, the several causes of action must inure to the plaintiff in the same right, and where the action is against different defendants, their liability must grow out of the same general right of the plaintiff. They need not be liable in the same way, and to the same extent, but the same general cause of action must include them all. e 337. Damages to real estate ; when can be joined with action to recover possession. The subdivision of the statute au- thorizing the joinder of " claims to recover the possession of real prop- erty, with or without damages, rents, and profits; for withholding thereof, and for waste or damage done to the lands ; to make partition thereof, and to determine and quiet the title to real property," would seem to be broad enough in its terms to include damages for all kinds of injuries to the real estate, but the supreme court has held otherwise/ In Woodruffs. Garner it was held that in an action to recover the ' possession of real estate, mesne profits might be recovered, but dam- ages for an injury to the freehold could not. The court say : " Mesne (d) B.S. 1881, ? 264, 284; The Pitts- (e) Pom. Rein., $ 479, 480; Bliss' burgh, etc., R. R. Co. v. Vinnig's Adm'r, Code PL. 123. 27 Ind. 513; ante, 65. (f ) Woodruff v. Garner, 27 Ind. 4. 15 226 JOINDER OF CAUSES OF ACTION. [CHAP. profits may be recovered as damages in an action for the recovery of possession. . . . But the claim for damages for injury to the free- hold is not incident to the subject-matter, and indeed could not have been properly joined with it in the same suit." If the court is right in this construction of the statute, only such damages can be recovered in connection with the action to recover possession as are incident to such suit, and all other actions for damages belong to subdivision second. 8 But this subdivision was so amended in 1881 as to authorize a recovery for " waste or damage done to the land." The language is broad enough to include every damage done to the land by the party wrongfully in possession. The authorities cited are not the law, there- fore, under the present code. 338. Actions for specific performance, and to avoid con- tracts for fraud and mistake. Under the sixth subdivision, "claims to enforce the specific performance of contracts, and to avoid contracts for fraud or mistake, may be joined." And it has been held that, in a suit for the correction of a mistake in a deed, the additional remedy of quieting the title to the real estate may be had. h 339. To recover purchase-money, and for sale of real es- tate. The statute also provides that, in any action brought for the recovery of the purchase- money, against any person holding a contract for the purchase of lands, the party bound to perform the contract, if not plaintiff, may be made a party, and the court, in the final judg- ment, may order the interest of the purchaser to be sold or transferred to the plaintiff, upon such terms as may be just, and may also order a specific performance of the contract in favor of the complainant, or the purchaser, in case a sale be ordered. 1 340. Actions for partition and to enforce lien on same real estate can not be joined. The seventh subdivision, after stating the several causes of action that may be joined, has a general clause authorizing the joinder of " all other causes of action arising out of a contract or a duty not fatting utithin either of the foregoing classes." But they must affect all the parties to the action, and not require different places of trial. (g) See Burrows v. Holderman, 31 (h) R. S. 1881, $278; Hunter v. Mc- Ind. 412. Coy, 14 Ind. 528. (i) K. S. 1881, 275. XI.] JOINDER OF CAUSES OF ACTION. 227 This section does not authorize the joinder of an action for partition with one to enforce a lien upon the real estate sought to be partitioned.' The case cited does not expressly decide the point, but intimates what the rule should be. There should have been no hesitancy on the part of the court in deciding that the causes were improperly joined. The action for partition belongs to the class named in subdivision five, and the one to enforce the lien to the class of subdivision seven. (j) Kennick v. Chandler, 59 Ind. 354. 228 PLEADINGS THE COMPLAINT. [CHAP. CHAPTER XII. PLEADINGS THE COMPLAINT. SECTION. 341. Effect of the code on common-law and equity rules of pleading. 342. The statute. 343. Objections to the system consid- ered. THE COMPLAINT GENERAL RULES. 344. The statute. 345. Musfceontain the title of the cause. 346. Conclusions of law must not be plended. 347. Neither presumptions of law nor matters of which judicial notice will be taken need be stated in pleading. 348. Of what the courts will take ju- dicial notice. 349. Of what the courts will not take judicial notice. 350. Comments on the decided cases. 351. Complaint need not be in any particular form. 352. Evidence should not be pleaded. 353. Facts must be stated positively. 354. Complaint must show cause of action in all who unite as plaintiffs. 355. Where complaint may be for tort or upon contract; election. 356. Every substantial fact necessary to constitute a cause of action must be alleged. 357. When it is necessary to plead matter of inducement. 3-38. Matter of aggravation may be pleaded. 359. Privity of contract need not be shown under the code. . 360. Fictions must not be pleaded. SECTION. 361. Defense should not be anticipated. EXCEPTIONS TO RULE THAT DEFENSE MUST NOT BE ANTICIPATED. 362. Negligence. 363. Non-payment. STATUTORY RIGHTS. 364. Facts must be stated. 365. Exceptions in the statute.. 366. Statute of frauds. 367. Statute of limitations. CAPACITY TO SUB. 368. In actions by executors or admin- istrators, their capacity to sue need not be alleged. 369. The rule in actions by guardians. 370. In actions by foreign guardians, right to sue must be shown. 371. In actions by or against corpora- tions, facts showing corporate existence need not be pleaded. SURPLUSAGE. 372. What is surplusage. 373. What is material in a complaint. 374. Effect of too great particularity of averment. DUPLICITY. 375. What will amount to duplicity. 376. Several causes of action ma} r be stated in the same complaint in different paragraphs, numbered. 377. Where there are two causes of action, and but one relief, causes should be stated in separate paragraphs. XII.] PLEADINGS THE COMPLAINT. 229 378. The same cause of action may be differently stated in different paragraphs. 379. Inconsistent causes of action may be joined. 380. One cause of action should not be divided up and set out in differ- ent paragraphs. 381. In suing on a bond, several breaches may be alleged in the same paragraph. 382. Action on mortgage securing sev- eral notes. 383. Each paragraph must be good within itself. CERTAINTY. 384. The complaint should be certain. 385. Certaintv^s to time. 386. Certain^H^ applied to place. 387. ComplaiiKieed not allege a de- mand at any particular place in actions on bills and notes. 388. Certainty required in averments of subject-matter. CERTAINTY OF DESCRIPTION. 389. Of personal property. 390. In actions relating to real estate. 391. Monuments control distances. 392. In actions for specific perform- ance of contracts to convey real estate. 393. In actions to enforce mechanics' liens. FRAUD. 401. Facts constituting the fraud must be stated. CONSIDERATION. 402. When a consideration must be alleged. 403. Facts showing consideration must be pleaded. TITLE. 404. The complaint must show title. 405. Title to real property ; actions to recover real estate. 406. Can not allege a legal and recover on an equitable title. 407. Possession may be recovered on an equitable title. 408. Where ownership is alleged gen- erally, can the plaintiff recover on proof of an equitable title? 409. Complaint need not show title in action by landlord against ten- ant for possession. 410. In actions for forfeiture for the failure of condition subsequent. 411. For trespass on land. 412. To recover personal property. 413. In actions on promissory notes. IN ACTIONS OTHER THAN FOR MONEY OR SPECIFIC PROPERTY, THK COM- PLAINT MUST SHOW THAT THERE IS NO OTHER ADEQUATE REMEDY. 414. Kule not changed by the code. EXCEPTIONS TO COMMON-LAW RULES AS TO CERTAINTY 394. Conditions precedent. 395. The section does not apply to al- legations of excuse for non-per- formance of conditions. 396. Private statutes. 397. Actions for libel and slander. 398. On judgments. 399. In actions to contest wills. 400. Negligence. IN ACTIONS FOUNDED ON WRITTEN IN- STRUMENT, THE ORIGINAL OR A COPY MUST BE FILED WITH AND MADE A PART OF THE COMPLAINT. 415. The statute. 416. Exhibits control averments in pleading. 417. What is a written instrument within the meaning of the sec- tion. 418. When the written instrument is the " foundation of the action." 230 PLEADINGS THE COMPLAINT. [CHAP. 419. Must be referred to and made part r-f the pleading. 420. Written instrument, not the foun- dation of the action, can not aid the pleading. 421. Contract not alleged to be in writing conclusively presumed to be verbal. 422. The same copy may be referred to and made part of every pleading in the case. ACTIONS AGAINST HEIRS FOR DEBTS OF ANCESTORS. 423. What complaint must show. DEMAND FOR RELIEF. 424. The complaint should contain a prayer for relief. 425. Prayer can not enlarge, but may diminish, cause of action. 42G. Complaint must be signed by plaintiff or his attorney. 427. Cross-complaint. WHEN COMPLAINT SHOULD BE VERI- FIED. 428. Only necessary, as a rule, where ext. aordinary relief is demanded. 429. In replevin. 480. Injunction. 431. Mandate and 'prohibition. 432. Attachment. 433. Arrest and bail. 434. To review judgment. 435. Execution against the body. 436. Proceedings supplementary to execution. 437. Proceedings to revive judgments. 438. Ne exeat. 439. Habeas corpus. . 440. Proceedings to contest wills. 441. Applications to set aside default. 442. Complaint for new trial. 341. Effect of the code on common-law and equity rules of pleading. The effect of the code, as it affects the question of par- ties, has been considered. The changes made were many and impor- tant ; but the most radical changes are found in the form and manner of pleading under the code. At common law, actions were divided into separate and distinct classes, each of which was distinguished, in pleading, by arbitrary forms that must be strictly adhered to or the plaintiff must fail in his action. 8 In equity the rule was different. The sufficiency of the bill did not depend upon any technical use of words or phrases. It was in the nar- rative form, and must contain a statement of the facts upon which the right to relief was predicated. 11 In common-law actions, a failure to prove any of the issuable facts presented by the pleadings was fatal to the action. In equity such failure might result in total or only partial defeat. It was the boast of the common-law system of pleading that it re- sulted in a single issue. The failure to prove any fact necessary to sus- tain this issue must therefore result in total defeat. (a) Bliss' Code Kem., 509. PI., 139; Pom. (b) Story's Eq. PI., 26,27; Pom. Rem., 521. XII.] PLEADINGS THE COMPLAINT. 231 In equity great prolixity was necessary, because every fact, upon which the relief sought depended, must be stated; and no fact, not stated could be proved, however important to the right of recovery. 6 Mr. Story, in his Equity Pleading, says: "It may be proper, how- ever, to remark that every material fact, to which the plaintiff means to offer evidence, ought to be distinctly stated in the premises ; for, otherwise, he will not be permitted to offer or require any evidence of such fact," d The pleading in this form must, therefore, have been drawn with much care and nicety, as the right to prove any material fact depended upon its being alleged in the bill. But the result of a failure to prove such facts as were alleged did not, as at common law, deprive the party of all right to relief. If enough of the facts pleaded were proved to entitle him to any part of the relief demanded, to that ex- tent he was entitled to recover. 6 These two systems of pleading were, at the time of the enactment of the code, separate and distinct. They were separated by well- defined lines, that could not be crossed in the administration of justice. If a party complaining appealed to the equity side of the court, and his remedy should be at common law, he must go out of court, no mat- ter how meritorious his cause of action. The result was the same where the action was brought as a comnyra-law action and the relief to which he was entitled proved to be equitable. The result of the code has been to obliterate these lines of distinc- tion, so far as the rules of practice and pleading are concerned, and to consolidate the common law and equitable causes of action into one to be denominated a " civil action." f The manner in which the cause of action must be stated partakes more of the equitable than the common-law system, but it is not gov- erned by either. To determine what must be contained in the com- plaint or other pleading, resort must be had to the statute. 342. The statute. " The pleadings are formal allegations by the (c) Story's Eq. PI., 28. Hare, 264, 266; Peacock v. Terry, 9 (d) Citing Irnham v. Child, 1 Bro. Ga. 148. Ch. 94; Gilb. For. Rom. 91, 218; (e) Pom. Kem., 527. Wilkes v. Rogers, 6 Johns 566; Gor- (f) R. S. 1881, 249; ante, 176, don v.Gordon, 3 Swanst 472; Sidney 177; Scott v. Crawford, 12 Ind. 410; v. Sidney, 3 P. Wms. 276; Watkyns v. The Indiana, etc., R. R. Co. v. "SVill- Watkyns, 2 Atk. 96; Whaley v. Nor- iams, 22 Ind. 198; Ewing v. Ewinsr, '24 ton, 1 Vern. 483; Clarke v. Turton, 11 Ind. 468; Troost v. Davis, 31 Ind. Ves. 240; Houghton v. Reynolds, 2 34, 38. 232 PLEADINGS THE COMPLAINT. [CHAP. parties of their respective claims and defenses for the judgment of the court, "s "All the distinct forms of pleading heretofore existing inconsistent with the provisions of this act are hereby abolished, and hereafter the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are modified, as prescribed by this act." h I attempted to show, in a former chapter, that the changes made by the code do not affect the rights of parties or the remedies formerly given for a violation of those rights ; but affect alone the form of action, or the means by which the remedy may be obtained.' The distinctions between the remedies recognized by courts of law and equity are clearly defined, and are recognized and enforced under the code.-" But the means by which the different remedies may be ob- tained are the same as a rule of pleading. The facts stated in the pleading determine the right and the remedy. If the right calls for a legal remedy, as shown by the facts pleaded, the legal remedy will be given. If the remedy must be equitable under the facts, an equitable remedy is administered. The great difference between the new system and the old is that a party is entitled to just such relief as the facts pleaded and proved entitle him, and the fact that he conceives that his relief must be equitable, and j>rays for such relief, does not affect his rights. The court must grant such relief as the facts pleaded call for, whether legal or equitable, notwithstanding the party may have mis- taken his rights and asked for another and different remedy, that under the old system could not be granted. k Both legal and equitable causes of action may be joined under the code, as I have shown in the chapter on Joinder of Causes of Action. 1 The fact that they were, under the old system, different causes of ac- tion, calling for different kinds of relief, does not in any way affect the question of joinder. If they grow out of the same general right, they are in fact one under the code, included within the term civil action. 343. Objections to the system considered. With those of the profession who practiced under the old system the code was a severe (g) R. S. 1881, 835. -burn, 25 Ind. 259; Godall v. Mopley, (h) R. S. 1881, 336. 45 Ind. 355, 359; Baker v. Armstrong, (i) Ante, 177. 57 Ind. 189; Kern v. Hazelrig, 11 Ind. (j) Pom. Kern., 36. 443; Sohn v. The Marion, etc., Gravel (k) Bennett v. Preston, 17 Ind. 291 ; Road Co., 73 Ind. 77. Lowry v. Dutton, 28 Ind. 473; The (1) Ante, 311 et seq. Cincinnati, etc., R. R. Co. v. Wash- XH.] PLEADINGS THE COMPLAINT. 233 shock. It made it necessary for them to unlearn what they had learned and begin anew. With them the common law was a great science; the distinctions between the common law and equity prac- tice and pleading could not be obliterated by u mere statutory en- actment, and the pleadings under the code were without form. This feeling of hostility against the code has grown less with time, but there are some remnants of it remaining in this state. It is still claimed, not only by lawyers, but by some legal writers, that the rules of plead- ing, as they existed under the old system, are not obliterated." 1 This is true as to some of the old rules of pleading, but not as to others. The object of the code is to simplify the rules of practice and pleading. If the old rules were to be followed, the purpose and object of the code would be entirely frustrated. If any confusion has grown up out of the new system, it is not the fault of the code. Why should any confusion grow out of the require- ment that the pleading shall contain " a statement of the facts constituting the cause of action, in plain and concise, language, without repetition " save- in the mind of a pleader, who has been accustomed, under the com- mon-law system, to say one thing when he means another, and in a kind of technical language that no one but himself and other common- law pleaders could understand ? The confusion has not grown out of any want of conciseness and simplicity in the code, so much as the determination of members of the profession and the bench, to hold on to the old systems and rules of plead- ing in defiance of its express terms. The courts have grown more lib- eral as time passed, and, here and there, cases that failed to give full force to the code, are being overruled, doubted, and criticised, while others have not, only because the questions have not been again presented. The result is, that some parts of the code are liberally construed, so as to carry out the' intention of its framers, while other parts have been so strictly construed as to destroy their force, thus in some measure destroying the harmony of the entire system. Instead of breaking loose from the two old systems, and accepting the plain terms and meaning of the code, we are still clinging to these old rules of plead- ing and practice, thus blending the new and the old together, making confusion inevitable." THE COMPLAINT GENERAL RULES. 344. The statute. "The first .pleading, on the part of the plaintiff, is the complaint. The complaint shall contain : (m) Iglehart's Pr. and PI., p. 2, ? 6. (n) Judah v. The Trustees of Vin- cetincs University. 23 Ind. 273, 280. 234 PLEADINGS THE COMPLAINT. [CHAP. " First. The title of the cause, specifying the name of the court and county in which the action is brought, and the names of the parties to the action, plaintiff and defendant. " Second. A statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is in- tended. " Third. Where the complaint contains more than one cause of ac- tion, each shall be distinctly stated in a separate paragraph and num- bered. " Fourth. A demand of the relief to which the plaintiff may sup- pose himself entitled. If the recovery of money be demanded, the amount thereof shall be stated. "(1) 345. Must contain the title of the cause. That the title of the cause shall be given, is as imperatively required by the terms of the statute as any other part of the complaint, but it is one that is not always complied with. The good pleader Avill comply with every re- quirement of the statute, whether the failure to do so will subject his complaint to demurrer or not. As a rule, the failure to give the title of the cause will not render the complaint bad on demurrer where the facts contained in the complaint supply the omission. p But the title to the cause sometimes supplies a defect in the com- plaint that would otherwise render it bad on demurrer. q In giving the title of the cause, the names of the parties should be fully and correctly stated. In actions by and against partners the names of the individual members must be given. It is not sufficient to give the firm name. (2) Corporations may sue and be sued in their corporate names. Church organizations must sue in the name of the " Wardens and Vestrymen of Church, ," or in the name of the " Trustees of Church, 346. Conclusions of law must not be pleaded. The com- plaint must contain the facts constituting the cause of action. The lacts must not be confounded with the evidence by which the facts are to be proved. It is never proper to allege matters of evidence, the (0) R. S.I 881, ? 338. 218; Hays v. Lanier, 3 Blkf. 322. (p) Ammerman v. Crosby, 26 Intl. (q) Lowry v. Dutton, 28 Ind. 473; 451. Brownfielcl v. Weicht, 9 Ind. 394. (1) Forms of complaints, Vol. 3, pp. (r) Drumheller v. The First Univer- 7-31 '.. salist Church, 4o Ind. 275. (2) Livingston r. Harvey, 10 Ind. XII.] PLEADINGS THE COMPLAINT. 235 rule being that neither evidence nor conclusions of law shall be stated. 8 347. Neither presumptions of law nor matters of which judicial notice will be taken need be stated in pleading.' 348. Of what the courts will take judicial notice. In a 'ate work on Practice in the supreme court, the question of what the courts 'will judicially take notice is carefully considered, and the mat- ters held to be within the rule clearly stated." The courts of this state will take judicial notice of: 1. The public statutes of the state. The rule extends to a knowledge of the contents of public statutes, and what is and what is not the pub- lic law of the state." 2. Counties, creation of by public statute.'" 3. The names of counties* and cities and towns therein.* 4. When a statute ivent into force. The supreme court will take judi- cial notice, not only that a public statute is in force, but the time when it took effect. * 5. School districts. School districts are regarded the same as coun- ties, being public corporations, organized under a public statute. 2 6. Existence of war and restoration of peace.* 7. Accession of President of the United States and governors of states.* 8. The current coins of tlie country. c 9. Navigable streams.'* (s) Warner v. Hatfield, 4 Blkf. 392; Gregg, 19 Ind. 401; Dawson v. James, Kern r. Hazelrig, 11 Ind. 443; Stone 64 Ind. 162. t-. Lewman, 28 Ind. 97 ; Clark r. Lin- (x) Whitney v. The State, 35 Ind. enberger, 44 Ind. 223; King v. The 503; Cluck r. The State, 40 Ind. 263, Enterprise Ins. Co., 45 Ind. 43. 273; Turbeville v The State, 42 Ind. (t) R. S. 1881, 374; Kern v. Hazel- 490; Carr v. McCambell, 61 Ind. 97. rig, 11 Ind. 443; Page v. Ford, 12 Ind. (y) The State v. Bailey, 16 Ind. 46; 46; Hosier v. Eliasun, 14 Ind. 523; Cordell v. The State. 22 Ind. 1. Charleston, etc., Co. v. Willey, 16 Ind. (z) Swails v. The State, 4 Ind. 616. 34; Danville, etc., Co. . The State, 16 (a) Perkins r. Rogers, 35 Ind. 124. Ind. 456. (b) Hizer r. The State, 12 Ind. 330. (u) Buskirk's Prao. 15. (c) Daily v. The State. 10 Ind. 530. (v) Shultz r. The State, 65 Ind. 492; (d) Depew v. The Board of Trustees, The State i\ The Trustees, etc., 5 Ind. etc., 5 Ind. 8; The Board of Commr's, 77; Evans v. Browne, 30 Ind. 514; etc-., r. Pidge, 5 Ind. 13; Neaderhouser Van Dorn v. Bodley, 38 Ind. 402. w..The State, 28 Ind. 258; Dawson v. (w) The Board of Comm'rs, etc., v. James, 64 Ind. 162; Ross v. Faust, 54 Spitler, 13 Ind. 235; Buckinghouse v. Ind. 471. 236 PLEADINGS THE COMPLAINT. [CHAP. 10. Tlie history, geography, topography, and condition of the country. e The rule that the courts will take judicial knowledge of the topography and condition of the country, has been carried to the farthest extreme. In the case of Williams v. The State the court say : " The history of a country, its topography and condition enter into the construction of the laws which are made to govern it, and we must notice these facts judicially. We must know the fact that in the State of Indiana a public highway sometimes ceases to be traveled, #ud is abandoned long before it ceases to be legally a public highway, and that often portions of a highway are not u*ed as such for so long a time that they cease to be public places; and, indeed, there are occasionally places, owing to their peculiar topography on public highways con- stantly used, which become private, and afford even secret places where the act charged upon the appellant might have been committed wholly away from public gaze or annoyance. Besides, sometimes, public highways are laid out and established legally through portions of primeval forest and thick underbrush, affording many secret places which remain secure and unbroken and impenetrable to the public eye for a long time before such highways are opened practically and be- come public places." This is carrying the doctrine of judicial knowledge to an extreme that can not be justified. There is no reason to uphold it. To say that the court must judicially know that a road sometimes ceases to be traveled, and that often portions of highways are not used as such, and that such as are constantly used sometimes furnish secret places for the commission of crime is a strange application of the rule.* It has also been held that the courts will take judicial notice of the geographical positions of stations on railroads/ 11. The duty of common carriers." 12. Of the seasons of the year and of husbandry. 1 " 13. Distances and facilities for travel, and the time necessary to reach any given point. 1 14. Attorneys; appearance. Where an attorney has once appeared in a cause in the court below, and the cause has been reversed and ap- (e) Steinmetz v. The Versailles, etc., (g) The Evansvilie, etc., R. R. Co. v. Turnpike Co., 57 Ind. 457; Mossman Duncan, 28 Ind. 441. v. Forest, 27 Ini. 233; The Indianap- ( h) Ross v. Boswell, 60 Ind. 2:3-3; olis, etc., R. R. Co. v. Lyons, 48 Ind. Abshire v. Mather, 27 Ind. 381 ; Abel 119; Williams v. The State, 64 Ind. . Alexander, 45 Ind. 523. 653; The States Moriarty, 74 Ind. 103. (i) Cefret r. Burch, 1 Blkf. 400; (f ) The Indianapolis, etc., R. R. Co. Hipes c. Ci.chran, 13 Ind. 175; Man- v. Stephens, 28 Ind. 429; The Indian- ning v. Gasharie, 27 Ind. 399; Ward apolis, etc., R. R. Co. v. Case, 15 Ind. 42. v. Calyhan, 30 Ind. 395. * Since the text was written this case has been overruled. XII. J PLEADINGS THE COMPLAINT. 237 pealed to the supreme court the second time, it has been held that the court will judicially know what attorneys have appeared in the cause.* 15. The times tif holding Inferior courts.* 16. That whisky and wine are intoxicating. 1 17. That ale is a malt liquor. m 18. Tlie number of votes cast at a general election." The case cited has not met the approval of the profession. The cause was surrounded by such political influences that the decision has been looked upon with disfavor. The judges were divided in opinion, and two of their num- ber dissented from the conclusion reached by the majority of the court. But, however the case may be regarded, it must be recognized as -the law of this state for the present. The rule only extends to general elections, and not to merely local elections in towns, cities, or town- ships. 19. That during, and since the war of the rebellion, the adjutant- general of the state has kept muster-rolls of the different regiments of volunteers*furnished by the state in the military service of the United States. 20. The population of cities and towns.? 21. That a town or city is incorporated as swcL q In an earlier case it was held, in express terms, that the court could not judicially know that a town was incorporated ; r but the case of Stultz v. The State applies only to such towns as are incorporated by a public statute. The town of Huntington, of which the court was speaking, was incor- porated by act of the legislature ; a and this act, being a public statute, must be judicially noticed by the courts. But the court, in the latter case, takes judicial notice that the town of Huntington has since be- come an incorporated city " under the provisions of the general law of this state." This is based upon the ground that the court must take judicial notice of the history of the state. This position is entirely inconsistent with the case of Sipe v. Holiday ; for the incorporation of a town, un- der a general statute, is as much a part of the history of the state as (j) Symmes v. Major, 21 Ind. 443. (m) Wiles v. The State, 33 Ind. 206. (k) Buckinghouse v. Gregg, 19 Tnd. (n) The State c. Swift, 69 Ind. 505. 401; McGinnis v. The State, 24 Ind. (o) The Board of Comm'rs, etc., v. 500; Koberts v. Masters, 40 Ind. 461; May, 67 Ind. 562. Collinst>. TheState, 58 Ind. 5; Spencer (p) Stultz r. The State, 65 Ind. 492; r. Curtis, 57 Ind. 221 ; Dorman v. The Kalbrien v. Leonard, .34 Ind. 497. State, 56 Ind. 454. (q) Stultz v. The State, 65 Ind, 492. (1) Carmon r. The State, 18 Ind. (r) Sipe v. Holiday, 62 Ind. 4, 8. 450; Eagan v. The State, 53 Ind. 162; (s) Acts 1873, Special Session, 149. Sclicht v. The State, 56 Ind. 173; Jackson v. The State, 19 Ind. 312. 233 PLEADINGS THE COMPLAINT. [CHAP. that of the incorporation of a city, and should be judicially known by the court for the same reason. Where a town or city is incorporated by an act of the legislature, there is good reason for holding that the court should take judicial notice that the town or city is incorporated; but where a general statute is enacted, by virtue of which towns or cities may or may not become incorporated, as the inhabitants shall de- termine, the rule that a court must know that a certain town or city has taken advantage of it is without any foundation. If it is based upon the ground of its being a part of the history of the state, the rule could be extended to every public act done in the state, as they all go to make up its history. 22. That a trustee of a civil township is also the trustee of the school toivnship.* 23. That "C. 0. D" means collect on delivery. u 24. That a notice given on a certain date is given on Sunday.* 25. Of proclamations by ilie governor of the state.* 26. Of congressional surveys.* 27. Of the officers of the court and their signatures. 7 28. Of the times of holding general elections.* 349. Of what the courts will not take judicial notice. 1. Statutes of other states. It is well settled by authority in this state that the courts will not take judicial notice of the statutes of other states. They must, therefore, be pleaded and proved." 2. The contents of legislative journals. The rule that courts will take judicial notice of public statutes does not extend to the contents of journals of the legislature. The proper officers of the two houses must determine whether a law has been properly passed or not before signing it, and the courts will not look behind the act itself, signed by the president of the senate and speaker of the house of representatives. 1 * (t) Inglis v. The State, 61 Ind. 212. (a) Stout v. Wood, 1 Blkf. 71 ; El- (u) The United States Express Co. liot v. Ray, 2 Blkf. 31 ; Titus v. Scant- v. Keefer, 59 Ind. 263. ling, 3 Blkf. 372; Doe v. Collins, 1 Ind. (v) Chrisman v. Tuttle, 59 Ind. 155. 24; Johnson v. Chambers 12 Ind. 102; (w) Dowdell v. The State, 58 Ind. Engler v. Ellis, 16 Ind. 475; Crake v. 333. Crake, 18 Ind. 156; Buckinghouse v. (x) Murphy v. Hendricks, 57 Ind. Gregg, 19 Ind. 401; Snyder v. Snyder, 593. 25 Ind. 399; Smith v. The Aluncu' (y) Hipes v. The State, 73 Ind. 39; National Bank, 29 Ind. 158. Buell v. The State, 72 Ind. 523. (b) Coleman v. Dobbins, 8 Ind. 156; (z) Urmston v. The State, 73 Ind. Van Dorn v. Bodley, 38 Ind. 402; 175. Skinner v. Deming, 2 Ind. 558; Evans, Auditor of State, v. Browne, 30 Ind. 514. XII.] PLEADINGS THE COMPLAINT. 239 The rule that the courts can not take judicial notice of the contents of legislative journals is very clearly settled by the authorities cited. There is, however, another question nearly connected with it, upon which the decisions are somewhat conflicting, viz., whether the court can go behind the legislative act, as signed by the proper officers, and inquire into the legality of its passage. The question was presented in the case of Coleman v. Dobbins, and was thoroughly considered. The court say : " Two inquiries are sug- gested by this assignment: 1. Whether the court will go behind the statute to look into the mode of its passage ; 2. And, if so, how is the question to be presented to the court ? " 1. The most superficial must admit that a question pregnant with such disastrous consequences as this, in certain contingencies, might be, should arrest the attention of every department of the government. The language of the constitution is very explicit as to the mode of passing bills; and what is more, it will be perceived that it is not merely directory, but imperative. 'A majority of all the members elected to each house shall be necessary to pass every bill.' ' Every bill shall be read by sections on three several days in each house.' It is not easy to see upon what principles a statute passed in derogation of these constitutional requirements could be sustained. That the facts in relation to the passage of an act would, if formally presented, be a proper subject of judicial inquiry and determination can not be doubted ; for, otherwise, the people would be deprived of all the guards and checks which the constitution was intended to erect between them and the encroachments of their public servants. The constitution is a law to even the law-making power. What the people say in that in- strument shall be, must be, and there must of necessity be some mode of arresting any infraction of its provisions. On any other hypothesis, the experiment of constitutional restrictions on delegated power would be a total failure. " The inquiry behind the statute to see whether it was constitution- ally passed, is by no means so novel as many suppose. All these cases, and others that might be cited, admit the power of the courts to inquire whether the law was passed in conformity to the constitution. The courts can not compel the legislature to act. They assume no such power. They only assume to inquire, when a case is properly made : 1. Whether the provisions of the law are consistent with the constitu- (c) Citing The People r. Purdy, 2 2 Ind. 560; Miller v. The State, 3 Ohio, Hill, 31; Purdy v. The People, 4 Hill, 475; The People v. The Supervisors, 384; 10 Harris (Pa.), 376; Fowler r. etc., 4 Selden, 317; 14 111. 113. Peirce, 2 Cal. 163; Skinner v. Deming, 240 PLEADINGS THE COMPLAINT. [CHAP. tioii; 2. Whether it was passed as the constitution prescribes. If, upon examination, the courts conclude in the negative, on either point, they have no option but to declare the law void. . . . Courts are presumed to know the law. Thus the provisions of a public statute must be judicially noticed whenever they are applicable to pending cases. But to know the law does not imply a knowledge of all the steps attending its passage. " We are not aware that it is the duty of the courts to take judicial notice of the course of legislation or the contents of the journals. We are not presumed to know the facts which transpire in the progress of a bill through the two houses of the general assembly. ... It does not follow that the party claiming any right or defense growing out of the action of the assembly should plead the entire journals at the court by way of error. But when the facts relied upon are brought before us judicially, it will be our duty to inspect them as we would any other record, and determine whether the legislative action they record on the bill in question is in accordance with the constitution." 11 This decision clearly decides three propositions : 1. That the court has the right to go behind the published act of the legislature and de- termine from its journals whether the act in question was legally passed or not; 2. That the court will not take judicial notice of the contents of the journals ; 3. That so much of the journals of the legislature as is necessary to make out the cause of action or defense relied upon, and no more, must be alleged and proved. In a later case the question whether the court can go behind the en- rolled act of the legislature, signed by its proper officers, to determine upon the question of its validity, was again presented, and it was held that the court had no such power ; that the authentication of the officers must be taken as conclusive evidence that the law was enacted in conformity with the requirements of the constitution. In the course of a lengthy opinion, the court say: " This exact question has received the consideration of other American courts, who have thoughtfully, and with careful steps, reached the conclusion that the authentication of the presiding officers of the legislature is conclusive evidence of the proper enactment of the law, and that they can not look elsewhere to falsify it." c (d) Coleman v. Dobbins, 8 Ind. 156. Conn. 8; Fouke r. Flemming, 13 Md (e) Evans v. Browne, 30 Ind. 514, 392; People v. Supervisors of Chenan citing State v. Young, 5 Am. Law Reg. go, 4 Seld. 317; People v. Devlin, 3i (N. S.) 679; Pacific K. R. Co. v. The N. Y. 2<>9. But see Cooley's Const Governor, 23 Mo. 353; Duncomb v. Lim. 104, and cases oited. Prindle, 12 Iowa, 1 ; Eld v. Gorham, '20 XII.] PLEADINGS THE COMPLAINT. 241 In a late work on Code Pleading, the author cites the case of Evans v. Browne as authority that the courts of Indiana will take judicial knowledge of the contents of the journals of the legislature/ The case does not decide the point, but holds that the court can not look to the journals, judicially or otherwise, to determine the validity of a law passed, as they could not look beyond the enrolled act. It is true, the learned judge who delivered the opinion speaks against the the decision in Coleman v. Dobbins, and complains that this and other cases do not pass directly upon the point, and then follows the bad ex- ample complained of and avoids a decision of the question^ 3. The time of the division of counties, by county commissioners, under the general law. While it is held that courts must take judicial notice of a county created by public statute, the rule does not extend to the time of a division of a county, under the general law, by the proper authority. 11 This case can not be made to harmonize with the rule, that the court will take judicial notice that a town has been in- corporated under a general statute. 4. The number of wards in a city, or the number of councilmen.* 5. Of the organization of corporations. As a rule, courts will not take judicial notice of the existence of corporations. While the law authorizing the organization of corporations will be judicially noticed, the fact that some particular corporation has organized under it is not within the ruleJ The rule is well established that the fact that a corporation, suing as such, is properly organized, will be presumed unless the question is put in issue by special plea. k (f) Bliss' Code PI., ? 194. (j) Cicero Hygiene Draining Co. v. (g) Busk. Prac. 15; King v. Arun- Craighead, 28 Ind. 274; Chance v. del, Hobart, 109 ; Grob v. Cushman, 45 The Indianapolis, etc., R. R. Co., 32 111. 119; Illinois Central R. R. Co. v. Ind. 472. Wren, 43 111. 77 ; Shipman v. The (k) Cicero Hygiene Draining Co. v. State, 42 Wis. 377; 1 Green. Ev., 6, Craighead, 28 Ind. 274; Harris v. Mus- and cases cited. See, also, McCulloch kingum Mfg. Co., 4 Blkf. 267; Richard- v. The State, 11 Ind. 424, where it is son v. The St. Joseph Iron Co., 5 Hlkf. held that the journals of the legisla- 146; Heaston v. The Cincinnati, etc., ture are conclusive, and can not be R. R. Co., 16 Ind. 275; Hubbard v. disputed. Wright v. Defrees, 8 Ind. Chappel, 14 Ind. 601; Guaga Co. v. 298. Dawson, 4 Blkf. 202; Dunning v. Th"> (h) Buckinghouse v. Gregg, 19 Ind. New Albany, etc., R. R. Co., 2 Ind. 401. 437; Railsback v. The Liberty, etc., (i) Moberry v. The City of Jeffer- Turnpike Co., 2 Ind. 656. sonville, 38 Ind. 198; Baker v. Tobin, 40 Ind. 310. 16 242 PLEADINGS THE COMPLAINT. [CHAP, Therefore it is not necessary to allege the existence of a corporation in the first instance. But this is a mere presumption that must not be confounded with judicial knowledge. When the question of the ex- istence of the corporation is put in issue by special answer, the fact of the legal incorporation of the company must be proved or disproved as any other fact. There is an exception to this rule found in the reports. It is held that where draining associations file their articles of association in the recorder's office of any county, the courts of that county must take judicial notice of the organization of the company. 1 But this rule applies only to the class of corporations named, and the courts of the county where the corporation has its articles of asso- ciation recorded are expressly required by statute to take judicial no- tice of its incorporation. It was held, under this statute, that the statute only applied to the county where the articles of association were recorded, and that the supreme court would not therefore take judicial notice of the incorporation of such company." But by a later statute the requirement, that should not have been made to apply to any court, has been extended to all the courts of the state. And it should be further noticed that the rule that in the absence- of a special answer controverting the fact, it will be presumed that a corporation suing as such is properly organized, does not apply to a case where the corporation is suing upon a subscription made before the corporation is organized and with a view to such organization. In such case, the organization of the corporation is a condition pre- cedent to the right to recover on the subscription, and the fact must be alleged and proved. p And the corporation must allege in the complaint the facts showing that the company has complied with the statute in its organization. q 6. The names of townships composing a county. T 7. That malt liquors are intoxicating. 8 8. Private statutes. The rule that courts will take judicial notice of statutes does not extend to private statutes. This is upon the theory (1) The Eel River Draining Ass'n The Crawfordsville, etc , Turnpike Co., t;. Topp, 16 Ind. '242; Herod v. Rod- 19 Ind. 242; The Indianapolis, etc, man, 16 Ind. 241 ; Anderson v. The Co. v. Herkimer, 46 Ind. 142. Kerns Draining Co., 14 Ind. 199. (q) Fox v. Allensville, etc., Turn- (m) 1 G. & H. 303. pike Co., 46 Ind. 31 ; Miller v. The (n) Cicero Hygiene Draining Co. v. Wildcat Gravel Road Co., 57 Ind. 241. Craighead, 28 Ind. 274. (r) Bragg v. The Board of Comm'rs (o) 1 R. S. 1876. p. 419, \ 5. of Rush Co., 34 Ind. 405. (p) Chance v. The Indianapolis, etc., (s) Shaw v. The State. 56 Ind. 188f Turnpike Co., 32 Ind. 472; West v. Klare r. The State, 43 Ini 483. XII.] PLEADINGS THE COMPLAINT. 243 that such a statute is in the nature of a contract with the party affected by it.* It has been held that to constitute a statute a public act, it is not necessary that it should extend to all parts of the state. It is a public act, if it extends equally to all persons within the territorial limits de- scribed by the statute." 350. Comments on the decided cases. It has not been the purpose to go into the question generally of what the courts will take judicial notice. This must be found in the works on evidenced The matters noticed are such only as our own supreme court have passed upon. It will be difficult to reconcile the cases with themselves, and most if not all of them are only worthy of consideration as having settled the question as to the class of cases presented. None of them attempt to state the reason upon which courts will take judicial notice of one fact more than another. No clear distinction is made between judicial knowledge and presumption. Judicial knowledge is some- thing that can not be disproved- A matter that is within the judicial knowledge of the court must be taken to exist absolutely, and can not be controverted." Presumptions may be equally conclusive ; but in the great majority of cases, where the question arises in pleading, the presumption is only prima facie evidence, and avoids the necessity of pleading the fact presumed to exist until denied by the opposite party. When denied, the presumption may be rebutted by evidence. 1 And a presumption may be rebutted by the judicial knowledge of the court. y The ground upon which courts take judicial notice of a fact is that it is one that " ought to be generally known within the limits of their jurisdiction." 2 When this test is applied to some of the cases decided in Indiana, it will be found that the rule has been extended far Ibeyond its true intent. (t) Levy c. The State. 6 Ind. 281; (x) Best on Ev., g 42, 306, 314, 329; Hingle v. The State, 24 Ind. 28. 1 Green. Ev., 14, 15. (u) Levy r. The State, 6 Ind. 281 ; (y) Best on Ev., 329. Pierce v. Kimball, 9 Greenl. 54; Hin- (z) 1 Green. Ev., | 6; State r. gle v. The State, 24 Ind. 28. Twitty, 11 Am. Dec. 779, and note; s. (v) 1 Green. Ev., 2 4,'5, 6, 6a; Best c., Hawks, 441; Slaughter p. Barnes, Ev., ? 253, 254. 13 Am. Dec. 190, and note ; s. c., 3 A. (w) Best on Ev., 306; 1 Green. K. Marshall, 412. Ev., 15. 244 PLEADINGS THE COMPLAINT. [CIIAI'. 351. Complaint need not be in any particular form. Oiie of the objections raised to the code system of pleading is that the pleadings are noUrequired to be in any particular form, and therefore there is no science in pleading. The first of these is true. The com- plaint or other pleading is not judged by its form. If it contains the facts necessary to constitute a cause of action, it must be held good, no matter in what form it is alleged. It does not follow from this, how- ever, that there is no science in pleading under the code. On the con- trary, more skill is required of the pleader under the code system than at common law No form of words or phrases will answer for every case, as at common law. Every complaint must, to a great extent, be a form for itself. As the facts must be stated, each case must neces- sarily be different from every other, because no two cases are found where the facts are the same. It requires great care and skill to draw a complaint in compliance with the statute, where the cause of action grows out of many diverse facts. The rule that requires conciseness of expression is constantly being violated. Pleadings that should be short, concise, and in direct language are frequently long and prolific, containing much that is mere surplusage. This, it is claimed, is the fault of the system. Nothing is farther from the truth. It is a violation of the express terms of the code. The habit of making the pleadings too long and voluminous is one that adds greatly to the labors of the attorneys and the court, and many times deprives a pleading of much of its force. One of the most important lessons that a young attorney should be taught at the outset is brevity in pleading. The facts should be stated in the fewest words possible, and in plain and concise language, with- out repetition. When this is done, the facts furnish the form of the pleading. The pleader should be able to determine from the facts stated what remedy he is entitled to, but if he makes a mistake, and asks for a remedy to which he is not entitled, his pleading is not bad for that rea- son, if the facts stated entitle him to any remedy. 8 352. Evidence should not be pleaded. It is not always easy to distinguish between the facts and the evidence. The evidence should never be pleaded. A fact may exist which goes to make up the cause of action, an'd may be stated in a few words, while the evidence neces- sary to establish the fact may consist of many circumstances and col- lateral facts that would require many pages to set out. Any such col- (a) Shipler v. Isenhower, 27 Ind. 36; Howe v. Dibble, 45 Ind. 120; Patter- son v. The State, 10 Ind. 296. XII.] PLEADINGS THE COMPLAINT. 245 lateral facts and circumstances add nothing to the strength of the pleading, and will be disregarded as mere surplusage. If the proper motion is made, such matter will be stricken from the complaint. b 353. Facts must be stated positively. It was one of the rules of pleading at common law that " pleadings must not be by way of recital, but must be positive in their form." c This rule is not changed by the code. The pleading should not be by way of recital, or argumentative or hypothetical in its form. d But while the violation of this rule is a fault, it affects the form of the pleading rather than the substance, and does not render it subject to demurrer. 6 354. Complaint must show cause of action in all who unite as plaintiffs. The complaint, where a joint action is brought, may show a cause of action as to part of the plaintiffs, but not as to the others. It would seem in this class of cases, that the complaint should be held good as to those in whose favor a cause of action is stated, but the rule is clearly the other way in Indiana. If the complaint attempts to allege a joint cause of action as to all of the plaintiffs, but shows a cause of action in favor of a part only, whether joint or several, the complaint is bad not only as to those in whom a cause of action is not shown, but as to all/ 355- Where complaint may be for tort or upon contract ; election. We have seen that in certain cases the plaintiff may sue in tort, or he may treat the wrong as a contract and sue upon it as such. The rule is, in most of the states, that the plaintiff must make his elec- tion in which way he will sue, and that he is bound by the election throughout. In common-law pleading the form in which the action was brought necessarily showed the election. This is not true under the code in all cases. The complaint states the facts. If from the facts stated the law implies a promise to pay, the plaintiff is entitled to (b) Lash v. Perry, 19 Ind. 322; (e) Judah r. The Trustees of Vin- Harding v. The Third Presbyterian cennes University, 23 Ind. 272, 279. Church, 20 Ind. 71; Judah v. The (f ) Debolt r. Carter, 31 Ind. 355: Trustees of Vincennes University, 23 Berkshire r. Shultz, 25 Ind. 520; Ind. 272. Strange i: Lowe, 8 Blkf. 243; Lipperd (c) Stephen PI. 387. r. Edwards, 39 Ind. 165; Maple v. (d) Iglehart's Prac. 12; 1. Bates' Beach, 43 Ind. 51 ; Parker v. Small, 58 Ohio PI. and Par. 141. Id. 349; Holzmnn v. Hibben, 100 Ind. 83S; Faulkner r. Brigel, 101 Ind. 3'_j. 246 PLEADINGS THE COMPLAINT. [CHAP. recover as upon contract although the acts charged would entitle him to a judgment for damages in an action for tort." 356. Every substantial fact necessary to constitute a cause of action rriust be alleged. This rule grows naturally out of the statute. The right of the plaintiff to recover depends not upon formal allegations, but upon the facts pleaded. While the pleader should not include any matter in his complaint not necessary to a complete rem- edy, he should be more careful to allege every fact that is material to the plaintiffs recovery. To leave out one material fact necessary to a recovery is to render the complaint bad on demurrer, and also in the supreme court without demurrer. The requirement should not be extended beyond the facts, therefore matters that must necessarily be inferred from other facts alleged should not be pleaded. 11 357. "When it is necessary to plead matter of inducement. Where it is necessary to plead matter of inducement less particu- larity is required than in pleading matters of substance. Most of the matter in pleading, regarded under the common-law practice, and in most of the states, as matter of inducement, is not necessary to be alleged in Indiana. " Matter, of inducement is that which is merely introductory to the essential ground or substance of the complaint or defense." It is held, in most of the states, that in actions by corporations and guardians, administrators, executors, and others, acting in a representative ca- pacity, it must be shown, by way of inducement, that the plaintiff is a corporation, or acts in such representative capacity. Such allega- tions, as will be shown hereafter, are not necessary in this state. The right of the plaintiff to maintain the action, in the capacity in which he sues, will be presumed unless specially controverted by way of answer.' There are other matters, however, that fall within the defin- ition of matters of inducement that must be pleaded : as, in actions for slander, where the words are not actionable of themselves, but are made so by some extrinsic facts, such extrinsic facts must be pleaded.' It may be said, generally, that all matters necessary to show a right in the particular person to sue, where such right will not be presumed by the court, and all the facts necessary to explain and supplement the (g) Pom. Hem., 567, 572; Bliss' (j) Emerson v. Marvel, 55 Ind. 265; Code PL, 155. Hart v. Coy, 40 Ind. 553; De Armond (h) Iglehart's PI. and Pr. 9, 4. v. Armstrong, 37 Ind. 35. (i) Post, 368, 479, 564. XII.] PLEADINGS THE COMPLAINT. 247 direct allegations that a wrong has been committed, should be alleged, by way of inducement. k 358. Matter of aggravation may be pleaded. Matter of ag- gravation is proper to be pleaded ; but the failure to allege such matter does not vitiate the complaint. Such allegations are explanatory of the enormity of the offense committed, in case of forcible injuries. 1 It is sometimes important, as showing the extent of the injury in- flicted, and the purpose with which it was done, and may seriously affect the measure of damages. But, under the code, it is not neces- sary to allege all the circuhistances under which the offense is com- mitted to entitle the plaintiff to make proof of such circumstances. Where the act complained of is alleged, the circumstances under which it is done can be proved. It does not follow, however, that it is not proper to plead such attending circumstances. It is proper but not necessary. 359. Privity of contract need not be shown under the code. At common law the rule was that there must be some privity of contract to entitle a party to maintain an action. 1 " The rule was otherwise in equity. It was the rule, therefore, that at law, one who was not a party to the contract could not maintain an action upon it, although it might have been made for his benefit. In equity an action could be maintained by the party for whose benefit the contract was made. The rule in equity has been held, in this state, to be the rule under the code. In this class of cases it is necessary to allege the making of the contract, that it was made for the plaintiffs benefit, and that he has accepted of the contract and acted upon it. The acceptance must take place before the contract is rescinded by the party to be bound by it. The question may arise, when the promise has been made for the benefit of the plaintiff, upon a sufficient consideration moving from a stranger, or when money has. been placed in the hands of the defendant to be paid to the plaintiff. If the defendant has voluntarily, without consideration, accepted money and agreed to pay it to the plaintiff, he is entitled to recover, and need not show privity of contract." (k) Blis' Code PI., ? 150. Cloud v. Moorman, 18 Ind. 40; Day v. (1) Iglehart's Pr. and PI. 9, \ 8. Patterson, 18 Ind. 114; Lamb v. Don- (m) Salmon v. Brown, 6 Blkf. 347; ovan 19, Ind. 40; Shucraft v. David- Farlow v. Kemp, 7 Blkf. 544; Britsell son, 19 Ind. 98; Ellston v. Scott, 19 r. Fryberger, 2 Ind. 176; Conklin v. Ind. 290; Beals v. Beals, 20 Ind. 163; Smith, 7 Ind. 107. Duval 7-. Melntosh, 23 Ind. 529; Cross (n) Ball v. Silvers, 17 Ind. 539; v. Truesdale, 28 Ind. 44; Davis r. Col- 248 PLEADINGS THE COMPLAINT. [CHAP. 360. Fictions must not be pleaded. Fictitious allegations formed a very essential part of the pleadings at common law. The statute provides that " all fictions in pleading are abolished, and their use forbidden in courts of justice in this state. 361. Defense should not be anticipated. It is enough for the plaintiff to state his cause of action. An allegation intended to antic- ipate a defense that is expected to be made adds no strength to the- complaint. Such matter should be pleaded by way of reply. p EXCEPTIONS TO RULE THAT DEFENSE MUST NOT BE ANTICIPATED. 362. Negligence. To the rule that the defense must not be an- ticipated there are seeming exceptions. We have seen that in actions for negligence the plaintiff is bound to allege that he was without fault. Notwithstanding this rule, the defendant may set up any neg- ligence on the part of the plaintiff that would amount to a defense, and the requirement that the plaintiff shall allege that he was not guilty of contributory negligence is an exception to the rule that the plaintiff should not anticipate the defense. q 363. Non-payment. In an action on a written contract to pay money, the authorities in this state are uniform that the complaint must allege that the demand is unpaid/ These authorities would seem to violate the rule under consideration. The plaintiff is not bound to prove the negative that the amount cl&vmed has not been paid ; but the complaint must, the authorities say, allege a breach of the con- tract, and in thisTclass of cases the non-payment is the breach. 8 It is not necessary that the complaint should aver, in direct terms, that the amount claimed is unpaid. It is enough if equivalent words are used. It has been held that an allegation that the amount is due loway, 30 Ind. 112; Marlctt r. Wilson. (r) Downey v.Whittenberger, 60 Ind. 30 Ind. 240; Mathews v. Ritenour, 31 188; Lawson v. Sherra,' "21 Ind. 36:5: Ind. 31 ; Jaqua i: Montgomery, 33 Ind. Pace v. Grove. 26 Ind. 26: Johnson r. 36; Ritenour r. Mathews, 34 Ind. 279; Kilgore. 39 Ind. 147; Stafford r. Da- Miller v. Billingsly, 41 Ind. 489. vidson, 47 Ind. 319: Honorth . Scarce, (o) R. S. 1881, 378. 29 Ind. 278 ; Higert r. Th* Trustees of (p) 1 Bates' Ohio PI. and Par. 120; Asbury University. 53 Ind. 326; Mi- miss' Code PI., ? 200; Wilkinson r. chael P. Thomas, 27 Ind. 501; Jgle- Applegate, 64 Ind. 98 ; Iglehart's hart's Prac. 18. Prac. 17. (s) Lawson v. Sherry, 21 Ind. 363. (q) 1 Bates' Ohio PI. and Par. 120. XII.] PLEADINGS THK COMPLAINT. 249 J is equivalent to an allegation that it is unpaid, arid renders the com- plaint good in that respect.* The rule does not apply to actions for tort or for a statutory penalty. (1) STATUTORY RIGHTS. 364. Facts must be stated. Where a right or a remedy is given by statute that did not exist at common law, the facts necessary to show that the case is within the statute must be alleged in the -com- plaint. Thus, in an action by a female to recover damages for her own seduction, the right to sue is given by statute to any unmarried female." At common law, the female could not maintain the action. It has been held, therefore, that she must, in order to bring herself within the statute, allege that she is unmarried. This is held to be necessary to constitute her cause of action." r^" 365. Exceptions in the statute. It was a rule of pleading at common law that if an exception in a statute appeared in the enacting ,vk.' clause, the declaration must show that the plaintiff, or the action brought, was not within the exception; but where the exception ap- peared in the proviso, it was not necessary to notice it in the complaint. The rule is thus stated : The rule usually laid down upon this subject is that where matter is introduced by way of exception into a general clause, the pleader must show that the particular case does not fall within such exception ; whereas a proviso need not be noticed by him, but must be pleaded by the opposite party. The difference is, where an exception is incorporated in the body of the clause, he w"ho pleads the clause ought also to plead the exception ; but when there is a clause for the benefit of the pleader, and afterwards follows a proviso, which is against him, he should plead the clause, and leave it to the adver- sary to show the proviso. w Where the exception is in a proviso or a subsequent clause, but the exception is necessary to constitute the cause of action, it must be set out.* The rule is the same under the code as at common law. The test is, whether the exception is necessary to be alleged to constitute a cause (t) Higert r. The Trustees, etc., 53 (v) Thompson r. Young, 51 Ind. 599. .nd. 326; Johnson r. KHsrore, 39 Ind. (w) Stephen PI. 443; Bliss' Code 147 ; Downey v. Whittenberger, 60 Ind. PI., 202. 188. (i) Bliss' Code PI., 204. (u) R. S. 1881, 263. (1) Western Union. Tel. Co. r. Toung, 93 Ind. 118. 250 PLEADINGS THE COMPLAINT. [CHAT. of action. If so, it must be averred, no matter in what part of the statute it occurs. y And where the jurisdiction of the court depends upon matters stated in the statute, the facts bringing the case within the statute must be stated. 2 366. Statute of frauds. The authorities are not uniform upon the point whether the plaintiff must show by affirmative averments that his cause of action is not within the statute. In this state, where the contract sued on is not shown to be in writing, as required by the statute of frauds, it will be held bad on demurrer. 8 It was otherwise at common law, and is in most of the states. The supreme court has gone farther, and held that where the complaint fails to show that the contract is in writing, and the statute provides that certain other acts, such as part payment or delivery, shall be sufficient, the complaint must allege that such acts or some of them have been done. b This rule requires the plaintiff to bring himself within the statute by the proper averments, and the presumptions are against him when the contract stated is one governed by the statute. 367. Statute of limitations. The exceptions in a statute of limitations need not be pleaded in this state, though the great weight of authority elsewhere is the^otberway. The plaintiff need not show that he is within any of the exceptions, even where the complaint shows upon its face that the action is barred. The statute of limita- tions must be specially pleaded by the defendant, and the exceptions are proper as matters of reply. c This class of cases is within the rule that the defense must not be anticipated. A violation of the rule does not render the complaint bad on demurrer. The matter can only be regarded as surplusage. CAPACITY TO SUE. 368. In actions by executors and administrators their ca- pacity to sue need not be alleged. In most of the states it is (y) 1 Bates' PI. and Par. 116, citing Toledo, etc., R. R. Co. v. Pence, G8 111. Faribault v. Hulet, 10 Minn. 30; Bap- 524. tist Church v. Utica, etc., R. R. Co., 6 (z) Thomas v. Wood, 61 Ind. 132. Barb. 313; Foster v. Hagan, 12 Barb. (a) Post, \ 514. 547; People v. Board of Police. 40 (b) Krohn r. Bsmtz. 68 Ind. 277. Barb. G26; s. c., 16 Abb. Pr. 337. 47:!; (c) Ante, \ :',07 ; post, \ 026. XII.] PLEADINGS THE COMPLAINT. 251 necessary, in an action by an administrator or executor, that the com- plaint should allege such facts as will show his right to sue as such. d Formerly, it was necessary that profert of the letters should be made, but this is not now required, even where the authority to sue must be shown. It has been held by the supreme court of this state that where an action was brought by an administrator de bonk /ton, the complaint must not only show his capacity to sue, but must also show who was the original administrator. 6 , But the statute governing the settlement of decedents' estates has materially changed the rule. It is not necessary, under the present statute, that an executor or administrator shall either make profert of his letters in the first instance, or allege facts showing his right to maintain the action. Where he sues as administrator or executor, the court must presume that he has been duly and legally appointed as such, unless it is put in issue by a special answer, under oath. The statute provides that, " in any suit contemplated by the preceding section, it shall not be necessary for such executor or administrator to make profert of his letters, nor shall his right to sue as such executor or administrator be questioned, unless the opposite party shall file a plea denying such right, with his affidavit to the truth thereof there- unto attached ; in which case a copy of the letters issued to such exec- utor or administrator, duly authenticated, shall be all the evidence necessary to establish such right." f The " suits contemplated by the preceding section" are all suits that an executor or administrator may maintain as such. 8 The statute dispenses with profert of the letters or allegations show- ing the capacity to sue in all actions that an executor or administrator may properly institute, admitting that he has been duly and legally appointed. 11 And the rule applies to foreign administrators.' The statute relating to foreign executors and administrators author- izes them to sue as other executors or administrators, but requires that their letters, granted by any other state or country, shall not only be duly authenticated, as in case of resident executors or administrators, but they must be filed in tlie court in whicli such suit is brought.* It is held, however, in the cases cited, that the letters need not be (d) Bliss' Code PI., 264. (i) The Jeffersonville, etc., R. R. Co (e) Vanblaricum v. Yeo, 2 Blkf. 322. v. Hendricks, 26 Ind. 228; Matlock v. (f) R. S. 1881, I 2292. Powell, 14 Ind. 378; The Jefferson- (g) R. S. 1881, 2291. ville, etc., R. R. Co. r. Hendricks, 41 (h) JSTolte v. Libbert, 34 Ind. 163; Ind. 48; Upton v. Adams, 27 Ind. 432 Kelley v. Love, 35 Ind. 106 ; Wyant v. ( j) R. S. 1881, 2298. Wyant, 38 Ind. 48. 252 PLEADINGS THE COMPLAINT. [CHAP. filed, as required by the statute, before or at the time the suit is com- menced. It may be done after the sworn answer is filed, denying their right to sue. If no such answer is filed, their right to sue will be pre- sumed, as in other cases, and the letters need not be filed at any time. 369. The rule in -actions by guardians. In actions brought by guardians, the question whether the right of the guardian to sue must be shown by proper averments is not governed by statute in this state, as in case of executors and administrators. It is very seriously questioned, in some of the authorities, whether the guardian of an in- fant can sue in his own name, or whether the suit must be brought in the name of the ward. k It was held, in an early case in Indiana, that the guardian might sue in his own name ; ! but the case is based upon the ground that the note sued on was, in fact, given to the guardian personally, the words " guardian of the estate of George Rector," the ward, being regarded as descriptio personce. That the action can be maintained in the name of the infant, by next friend, there can be no question, and, in certain cases, guardians are expressly authorized to sue. 1 " And, where the party sues as guardian, he must show his right to sue, by alleging that the person he claims the right to represent is an infant or an insane person, as the case may be, and that letters of guardianship have been granted to him by the proper court. 11 In the case of Maxedon v. The State, it is held that the action must be brought in the name of the infant by next friend, and not by guardian. This question has been considered in another place. 370. In actions by foreign guardians, right to sue must be shown. The right of a foreign guardian to sue in this state is gov- erned by a special statute. p Prior to this statute, it was held that the granting of letters of guardianship in another state gave the guardian no legal right to sue in Indiana.* 1 The statute provides that " when any minor or other person shall be under guardianship without this state, the foreign guardian may file an authenticated copy of his or her appointment, in the office of the (k) Pom. Rem., ? 182. Bliss' Code PI., 267; Maxedon v. (1) Shepherd v. Evans, 9 Ind. 260. . The State, 24 Ind. 370. (m) Ante, 81. (o) Ante, g 78, 79. (n) Bears v. Montgomery. 46 Ind. (p) K. S. 1881, 2540. 544: Shirley v. Hagar, 3 Blkf. 225; (q) Earl v. Dresser, 30 Ind. 11. M-cGilliciiddy v. 1-orsyth, 5 Blkf. 435; XII.] PLEADINGS THE COMPLAINT. 253 clerk of the circuit court of the county in which there may be per- sonal estate or assets of his or her ward, after which he or she may pro- ceed to take possession of said personal property or assets, and may sue for and recover possession thereof in the circuit courts of this state, and execute all proper and necessary receipts." Is it necessary, under this statute, that the foreign guardian shall show affirmatively in his complaint that he has complied with its pro- visions ? The question has not been decided by the supreme court. It was presented in a late case, but the decision was rendered on another point, the court stating expressly that the point here presented was uot decided/ The statute is imperative that the matters required in it shall be complied with, after ichich suit may be brought. As the right of the guardian to sue depends solely upon this statute, it would seem to be necessary, in order to show that he has capacity to sue, that the complaint should contain the averments that his ward is such a person as that letters might be granted, that letters have been granted to him by the proper court in the state of his residence, and the facts showing that a properly authenticated copy of such letters have been filed in the clerk's office of the county where the property or assets of his ward are situate. 371. In actions by or against corporations, facts showing corporate existence need not be pleaded. At common law, it was not necessary to allege the corporate existence of the corporation, though proof of its existence was necessary on the trial. A distinc- tion is sometimes made between domestic and foreign corporations, on the ground that the courts will take judicial notice of the incorpora- tion of a domestic corporation created by public statute. 8 It is insisted by the learned author that, under the codes, a corpora- tion created by private statute, or a foreign corporation, should be com- pelled to show, in the complaint, that it is legally incorporated, althoi:;- 1 ) it is admitted that such was not the rule at common law. 1 It is clearly not necessary to make any such allegation, where the defendant is sued upon a contract made with the corporation." This is upon the ground of estoppel. The defendant having con- tracted with the plaintiff as an existing corporation, is estopped to deny '(r) Shook v. The State, 53 Ind. 403. The Cincinnati, etc., Co., 14 Ind 89; (s) Bliss' Code PI., % 24(5, '247. Blake v. Holley, 14 Ind. 383; Meikel (t) Angell & Ames on Corp., g G32. v. The German Savings Fund Society. (u) AVertu. The Crawfordsville, etc., 16 Ind. 181 ; Vater v. Lewis, 36 Ind. Turnpike Co., 19 Ind. 242; Jones v. 288. 254 PLEADINGS THE COMPLAINT. [CHAP. its existence. He may show, however, that since the contract was en- tered into the corporation has ceased to exist. v The rule is well settled in Indiana, aside from this question of es- toppel, that it is not necessary for either a domestic or foreign corpora- tion to allege the existence of the corporation in the complaint. w There is an exception to the rule thus clearly established. It is held that where a corporation sues upon a subscription or other contract , entered into before its organization, but with a view to such orgaui/;,- tion, the corporation must allege in the complaint and prove upon the trial such facts as will show that it has, since the making of the con- tract, become a legally organized corporation.* This is placed upon the ground that the organization of the company is a condition precedent to the right of the corporation to maintain the action, and must therefore be alleged and proved. SURPLUSAGE. 372. What is surplusage. One of the most serious defects in the pleadings under the code is that they contain much unnecessary and redundant matter. Surplusage is such matter as may be stricken out without destroying or affecting the plaintiff's cause of action. The attempt is made in some of the books to distinguish between redundant matter and surplusage. y If any distinction exists, it is of no practical importance. Neither surplusage nor redundant matter render the pleading bad on demurrer ; but in either case it should be stricken out on motion. 2 373. What is material in a complaint. The supreme court has laid down a rule by which to determine what is material in a com- plaint. " The test what is material in the complaint will be furnished by the response to the question, what, under the general denial, must the plaintiff prove to secure a verdict in his favor ?" a (v) The President, etc., of Hartsville Co. v. Craighead, 28 Ind. 274; The University v. Hamilton, 34 Ind. 506; Adams Express Co. v. Hill, 43 Ind. Sutherland v. The Lagro, etc., Plank 157; K. S. 1881, \ 3064. lload Co., 19 Ind. 192; Meikel v. The (xi The Indianapolis, etc., Co. v. German, etc., Society, 16 Ind. 181; Herkimer, 46 Ind. 142; Chance v. The Snyder v. Studebaker, 19 Ind. 462; Indianapolis, etc., Gravel Road Co., "2 Baker v. Neff, 73 Ind. 68. Ind. 472. (w) Harris v. The Muskingum, etc., (y) Bliss' Code PL, g 215. Co., 4 Blkf. 267 ; Richardson -. The St. (z) Pom. Rern., \ 515. Joseph Iron Co., 5 Blkf. 146; Heaston (a) Judith r. The Trustees of V.n- r. The Cincinnati, etc., R. R. Co., 16 cennes University, 23 Ind. 275. Ind. 275; Cicero Hygiene Draining XII.] PLEADINGS THE COMPLAINT. 255 This test was, no doubt, correctly applied in the case cited, but it will not do to apply generally. The complaint must not only show that the plaintiff is entitled to recover, but where the amount of his recovery is not fixed and determined, it should show also what amount he is entitled to recover. In addition to this, it may be necessary, in some cases, .to aver matters of aggravation, in order to furnish the plaintiff with an ample remedy. In such case, not only are the bare facts necessary to show that he is entitled to recover material, but such matters of aggravation can not be regarded as surplusage. If the matter can be stricken out, leaving sufficient averments in the com- plaint to entitle the plaintiff to his full and complete remedy without its aid, it is surplusage, and should not be pleaded. b 374. Effect of too great particularity of averment. The plaintiff frequently involves himself in more serious consequences by alleging too much. If the unnecessary matter pleaded is separated from that which is material, and could be stricken out without injury to the cause of action, the injury to the plaintiff amounts to nothing more serious than having it disregarded or stricken out on motion. But if it is so alleged as to connect it with the material averments, in such a way that it can not be separated from it and stricken out, with- out destroying the cause of action, the plaintiff must make his proof correspond with his complaint, thus requiring additional particularity in proof that, but for a bad pleading, would be unnecessary. 6 The failure or inability to make the additional proof may lose him his case. The case of Dickensheets v. Kaufman was an action against the de- fendants as partners alleging the partnership and the firm name. There was a denial of the partnership. It was held that the answer tendered a material issue, and that the plaintiffs were bound to prove, not only that the defendants were liable but that they were liable as partners. The court say: "There are cases where unnecessary particularity of averment will require a corresponding exactness in proof, to avoid a variance. This is so whenever the unnecessary matter can not be stricken out without destroying the right of action, or where it identifies the contract or fact averred. In the case before us, the contract sued on is pleaded as one made by the defendants as partners, thus distin- guishing it from any joint contract of theirs not made as partners. If the plaintiffs might support the averment by proof of a joint liability (b) Bliss' Code PI., \ 215. 436; Bristow v. Wright, 1 Smith Lead. (e) Dickensheets v. Kaufman, 28 Cases, 901, and notes; Bliss' Code PL, Ind. 2ol; Graham v. Henderson, 35 215. Ind. 195; Tomlinson v. Collett, 3 Blkf. : , 256 PLEADINGS THE COMPLAINT. [CHAP. not as partners, it is clear that this form of pleading might be used to mislead. It seems to be settled that, in such a case the allega- tion and the proof must correspond." DUPLICITY. 375. What will amount to duplicity. In order to render a pleading double two causes of action must be stated. If an attempt is made to charge two causes of action, but the facts pleaded are not sufficient, to constitute both, the pleading is not double. So much as is necessary to constitute one good cause of action is material and properly pleaded; all other matter alleged, short of an independent cause of action, is surplusage or redundancy." 1 It is not necessary, however, that the two causes should be so stated as to withstand a demurrer if pleaded separately. If the causes are substantially stated the pleading is bad for duplicity. In the case of Swinney v. Nave the court say: "Duplicity in pleading is the in- cluding, even though stated with technical deficiency, two substan- tially good causes of action or defenses in one paragraph." If the causes of action are so pleaded that they would be held good after verdict, they should be regarded as within the rule. 376. Several causes of action may be stated in the same complaint in different paragraphs, numbered. The statute expressly authorizes the joinder of different causes of action in the same complaint. They can not, however, be pleaded in the same par- agraph. They must also be such causes of action as the statute authorizes to be joined. 6 The joinder of more than one cause of action, in the same para- graph of complaint, renders it objectionable on the ground of du- plicity/ 377. Where there are two causes of action, and but one relief, causes should be stated in separate paragraphs. It sometimes occurs that but one act gives more than one cause of ac- tion. Thus, it is said, " Words used in the sale of a horse, which make a contract of warranty, may, with the addition of knowledge (d) Thompson v. Oscamp, 19 Ind. (e) Ante, 313, 320. 399; Swinney v. Nave, 22 Ind. 178; (f) Rogers v. Smith, 17 Ind. 323; Broher v. Goldsborougb, 44 Ind. 490, Hendry r. Hendry, 32 Ind. 349; Den- 498; Evans v. White. 53 Ind. 1 ; Bliss' man r. McMahin, 37 Ind. 241; The Code PI., 294; Porter v. Bracken- Indiana State Board of Agriculture v. ridge, 2 Blkf. 385; Hay v. The State, Gray, 54 Ind. 91; Kimble v. Christie, 58 Ind. 337. 55 Ind. 140. XII.] PLEADINGS THE COMPLAINT. 257 of their falsity, give also a cause of action for the deceit, and thus the plaintiff may be wronged by the breach of the contract and by the fraud, but he can not recover for both causes ; to embody them in one statement would be duplicity, and, if both are relied on, they should be separately stated." 8 This is but an illustration of the rule. Where therearein fact two causes of action, though they may grow out of the same transaction, and the granting of one remedy would bar the recovery of the other, they should not be stated in the same paragraph. 11 378. The same cause of action may be differently stated in different paragraphs. In most of the states having codes simi- lar to ours, it has been held that the clause of the statute requiring that the cause of action shall be stated witJiout repetition, excludes the right that existed at common law of stating the same cause of action differently, in different paragraphs, on the ground that such pleading would render one paragraph but a repetition of another. If the cause of action were the same, to the extent that the same facts must be stated, there could be no occasion for different paragraphs. If the facts were different, it is difficult to see how one could be a repetition of the other. In the states where this rule prevails, the plaintiff must elect upon which of the paragraphs he will go to trial.' Mr. Pomeroy thus states the rule : " Since the reformed pleading re- quires the facts to be averred as they actually took place, it does not in general permit a single cause of action to be set forth in two or more different forms or counts, as was the familiar practice at the com- mon law. The rule is undoubtedly settled that, under all ordinary circumstances, the plaintiff, who has but one cause of action, will not be suffered to spread it upon the record in different shapes and modes, as though he possessed two or more distinct demands ; and when he does so without special and sufficient reasons, he will be compelled, either by a motion before the trial, or by an application and direction at the trial, to select one of these counts and to abandon the others. It is certain that different causes of action in the complaint or peti- tion must, as a general rule, imply as many distinct causes of action actually held or claimed to be held by the plaintiff." j (g) Bliss' Code PI., 120. 155; Nash v. McCauley, 9 Abb. Pr. (h) Pom. Rem., $ 452, 453, 456. 159; Sipperly v. Troy and B. R R., 9 (i) Bliss' Code PI., 119; Pom. Rem., How. Pr. 83 ; Hillman v. Hillman, 14 576. How. Pr. 456; Churchill v. Churchill, (j) Citing Sturgis v. Burton, 8 Ohio 9 How. Pr. 552; Ford v. Mattice, 14 St. 215; Muzzy v. Ledlie, 23 Wis. 445; How. Pr. 91 ; Dunning v. Thomas. It Lackey v. Vanderbilt, 10 How. Prac. How. Pr. 281. 17 258 PLEADINGS THE COMPLAINT. [CHAP. In Indiana, the rule is clearly the other way. The plaintiff may state the same cause of action differently, and can not be compelled to- elect upon which paragraph he will go to trial. k In Snyder v* Snyder the court say : " Motions to strike out the sec- ond paragraph of the complaint, and to compel the plaintiff to elect upon which paragraph he would go to trial, were overruled. These motions were supported by an affidavit showing that the note claimed to have been reduced to judgment, and the one counted upon in the second paragraph, was the same note. The ends of justice require that a party should be permitted to state his case in various forms so as to correspond with the proof, and thus secure his rights without be- ing compelled to resort to a second suit In those states where the unwise requirement exists compelling parties to swear to the truth of the claim or defense, there is a reason for the proceeding sought to be enforced by the defendant below, but there is none here." 379. Inconsistent causes of action may be joined. The rule established in other states, that the plaintiff can not state the same cause of action differently in different paragraphs, is followed by an- other, that inconsistent causes of action can not be joined in the same complaint even in separate paragraphs. Where this rule prevails the plaintiff is required to elect between the two causes of action. 1 But this is not the rule in Indiana. Not only may the same cause of action be differently stated, but causes of action that are -entirely inconsistent may be joined in the same complaint in different para- graphs, and the plaintiff can not be compelled to make an election be- tween them. m It is held otherwise where the inconsistency appears in the same paragraph." 380. One cause of action should not be divided up and set out in different paragraphs. Where there is but one cause of ac- tion there should be but one paragraph of complaint, except where the same cause of action is stated in different ways to meet the proof. A part should not be set out in one paragraph and part in another, as, for instance, different parts of one entire job of work done under an entire contract, the different breaches of a bond, or different items of a (k) Snyder v. Snyder, 25 Ind. 399; St. 88, 91; Supervisors v. O'Malley, 4& Stearnes o. Dubois, 55 Ind. 257. Wis. 35; Trumble.Doty : 10OhioSt. 119. (1) Bliss' Code PI., 122; 1 Bates' (m) McMasters v. Cohen, 5 Ind. Ohio PI and Par. 138; Mich. Sav. and 174; Snyder v. Snyder, 25 Ind. 399. Bldg. Loan Ass'n v. O'Connor, 16 Ohio (n) Armington v. The State, 45 Ind. 10. XII.] PLEADINGS THE COMPLAINT. 259 continuing account. It is not always easy to determine whether there is one or more causes of action. No matter how numerous the items may be, if they grow out of one and the same contract, although they may become due at different times, or are for work done or goods fur- nished at different times, they are but one cause of action. The sin- gleness of the contract may be regarded as a safe test of the singleness of the cause of action. 381. In suing on bond several breaches may be alleged in the same paragraph. Different breaches of the same bond may each amount to a separate and distinct cause of action, but they may nevertheless be joined in the same paragraph of complaint. p But for some purposes each breach assigned is regarded as a separate and dis- tinct paragraph. 1 * 382. Action on mortgage securing several notes. The question whether it is necessary in an action to foreclose a mortgage securing several notes, to plead a separate paragraph for each note, has not been definitely determined in this state. Where the action is brought to foreclose the mortgage against parties who are not liable to a personal judgment on the notes as the widow and heirs of the mort- gagor, it has been held not to be necessary to plead more than one para- graph/ This must necessarily be the case. As there can be no judgment on the notes, but only a foreclosure of the mortgage, there is but one cause of action to be stated. But it is quite different where a personal judgment may be taken on each of the notes. In that case the notes constitute the indebtedness, and the mortgage is but an incident to the notes. They constitute distinct causes of action as much as if they were not secured by mortgage. It would seem, for these reasons, to be the correct rule that each note should be pleaded in a separate paragraph. 8 No necessity exists for filing more than one copy of the mortgage, as it may be made part of each paragraph by reference. (o) Bliss' Code PI., 118; Bender- Badger v. Titcomb, 26 Am. Dec. 611, nagle v. Cocks, 19 Wend. 207 ; Secor and note (15 Pick. 409). v. Sturgis, 16 N. Y. 548; Draper v. (p) Richardson v. The State, 55 Ind. Stouveneal, 38 N. Y. 219 ; Farming- 381 ; Vol. 3, p. 66. ton v. Payne, 15 Johns. 432; Fisk v. (q) Reno v. Tyson, 24 Ind. 56; Cal- Tnnk, 12 Wis. 276; Stevens v. Lock- burn v. The State, 47 Ind. 310.^ wood, 28 Am. Dec. 492, and note (13 (r) Collins v. Frost, 54 Ind. 242. Wend. 644); Guernsey v. Carver, 24 (s) Firestone v. Klick, 67 Ind. 309. Am. Dec. 60, and note (8 Wend. 492); 260 PLEADINGS THE COMPLAINT. [CHAP. 383. Each paragraph must be good within itself. The rule that different causes of action may be joined in different paragraphs of complaint, makes each paragraph, in effect, a complaint. This being true, each paragraph must be a good complaint, or it will be subject to demurrer. One paragraph can receive no aid from another even by a direct reference to it, nor can a part of one be made part of another by a direct allegation that it is made a part. This rule applies to all pleadings authorized by the code. 1 The rule that one paragraph can not include within it the averments of another paragraph is strictly enforced. It has been held that, in an action to foreclose a mortgage, the description of the laud can not be included in a paragraph by reference to the description in another and a direct averment that it is referred to and made a part. There is an apparent exception to the rule that alloAvs one copy of a written instru- ment that is the foundation of the action to be referred to and made part of each paragraph, making it unnecessary to file a copy with each." And the rule has been extended so far as to allow a written instru- ment filed with the complaint to be referred to and made part of an answer without requiring an additional copy to be filed/ It has also been held that a cross-complaint may include a written instrument filed with the original complaint by a mere reference to it without filing a copy. w There is one case where the ruling was apparently the other way.* This case is distinguished in the case of Sidener v. Davis, on the ground that the written instrument filed with the complaint was not referred to in the cross-complaint. The whole reasoning in the earlier case shows, however, that the court did not so regard the force of the decision. It was expressly held that the statute imperatively required that the written instrument must be filed with the cross-complaint, notwithstanding the same instrument was filed as a part of the origi- nal complaint. There is, in fact, no difference in that and the case of Sidener v. Davis. (t) Leabo v. Detrick, 18 Ind. 414; Smith v. Little, 67 Ind. 549; Entsmin- Day v. Vallette, 25 Ind. 42; Mason v. ger v. Jackson, 73 Ind. 144. Weston, 29 Ind. 561 ; Potter v. Earn- (u) Peck v. Hensley, 21 Ind. 344; est, 45 Ind. 416; McCarman v. Coch- Maxwell v. Brooks, 54 Ind. 98. ran, 57 Ind. 166; Silvers v. The June- (v) Patterson v. Vaughan, 40 Ind. tion R. R. Co., 43 Ind. 435;. Clarke v. 253. Featberston, 32 Ind. 142; Woodward (w) Sidener v. Davis, 69 Ind. 336; v. "Wilcox, 27 Ind. 207; The Pennsyl- Patterson v. Vaughan, 40 Ind. 253; vania Co. v. Holderman, 69 Ind. 18; Post, 422. (x) Campbell v. Routt, 42 Ind. 410. XII.] PLEADINGS THE COMPLAINT. 261 In the latter case the written instrument was not made a part of the cross-complaint. It does nothing more than refer to the written instrument as that " of which a copy is filed with the complaint," and the reasoning of the other case, that is attempted to be distinguished from it, was based upon the assumption that the instrument named in the cross-complaint was the same filed with the complaint, and upon that assumption it was held that the fact of its being on file would not make the cross-complaint good. To say that the instrument upon which the cross-complaint was founded, was the same " of which a copy was filed with the com- plaint," did not make it a part of the cross-complaint. There should be a direct allegation making the written instrument a part of the pleading. CERTAINTY. 384. The complaint should be certain. Pleadings should be certain as to time and place, but it is not always necessary to the suffi- ciency of the complaint that it should be certain as to either. There are cases, however, where the failure to state either correctly will render the complaint bad on demurrer, or defeat the action on the trial if the time or place should not be proved as alleged. It is important, therefore, for the pleader to determine in advance, whether, in the particular case, certainty of time or place is essential either to the sufficiency of his complaint or his final recovery. Whether they are strictly necessary or not a careful and correct statement of time and place is a mark of the good pleader. y 385. Certainty as to time. As a rule, certainty as to time is not essential. There are cases, however, where time is said to be of the essence of the contract. In such cases, the time must be correctly stated. Thus, in an action against an indorser of a promissory note, payable in a bank in this state, it is necessary that a demand shall be made and notice given. There are well established rules regulating the time when the de- mand shall be made and notice given, in order to hold an indorser. 2 In order to recover against the indorser, the complaint must show that the demand and notice were within these rules. In matters of descrip- tion of written instruments, as bearing certain dates, great care should (y) Armstrong v. Cook, 30 Ind. 22. 172; Patterson v. Carroll, 60 Ind. 128; (z) Story on Prom. Notes,, $ 200, Mix v. The State Bank, 13 Ind. 521; 201, 210, 227, 230; Pollard v. Bowen, Ford v. Booker, 53 Ind. 395. 57 Ind. 232; Griffin v. Kemp, 46 Ind. 262 PLEADINGS THE COMPLAINT. [CHAP. be taken, as the failure to describe them correctly may prevent their being used as evidence on the trial. These are but illustrative cases, showing the necessity for certainty in a class of actions. The rule ap- plies to all cases where the time when a thing is done determines the right of recovery. 386. Certainty as applied to place. Where the right to main- tain the action in the county where it is commenced depends upon the place where the cause of action arose, certainty of place becomes ma- terial, and must be so stated as to give the court jurisdiction. The causes of action that must be commenced in the county where they arose are set out in the statute. a Actions to recover real estate are required to be commenced in the county where the real estate is situate. In this class of cases the place where the real estate is situate should be alleged to be in the county where the action is commenced, and the place must be truly stated. The failure to make this allegation is not necessarily fatal, however, where the court is one of general jurisdiction. As the jurisdiction of the court over the subject-matter will be presumed, it need not affirm- atively appear on the face of the complaint. b The presumption of jurisdiction supplies the place of the averment that the subject-matter of the action is in the proper county ; but where the complaint affirmatively shows that the real estate is in another county, or is not in the county where the action is commenced, it will be bad on demurrer. It has been held in a number of cases that the section of the statute requiring actions to recover real estate to be brought in the county where the real estate is situate is one of jurisdic- tion and not of venue, and therefore a complaint showing that the ac- tion is brought in the wrong county is subject to demurrer/ In actions commenced in courts of limited jurisdiction there is no such presumption, and the facts showing the jurisdiction must be af- firmatively alleged. d 387. Complaint need not allege a demand at any particu- lar place in actions on bills and notes. The statute provides that, " in any action or defense founded upon a bill or note or other (a) R. S. 1881, \ 307; Ante, 187 et Parker v. McAlister, 14 Ind. 12; The seq. New Albany and Salem E. K. Co. v. (b) Brownfield v. Weicht, 9 Ind. Huff, 19 Ind. 444; Vail v. Jones, 31 394; Kagan v. Haynes, 10 Ind. 348; Ind. 467; The Board, etc., v. Markle, Godfrey v. Godfrey, 17 Ind. 6 ; Loeb 46 Ind. 96. r. Mathis, 37 Ind. 306. (d) The Board, etc., v. Markle, 46 (c) Loeb v. Mathis, 37 Ind. 306 ; Ind. 96. Xir.] PLEADINGS THE COMPLAINT. 263 contract for the payment of money at a particular place, it shall not be necessary to aver or prove a demand at the place, but the opposite party may show a readiness to pay such demand at the proper place." 6 This statute must be taken as a rule of pleading. It does not follow from the fact that an affirmative allegation in the complaint, of a de- mand at the place, is dispensed with, that the party may not suffer at least partial defeat, if the money was at the place ready for pay- ment when due. The plaintiff, it is true, need not allege or prove a demand in the first instance ; but if the defendant pleads, by way of answer and proves on the trial that he was ready with the money at the place and time fixed in the contract, this would involve the plaint- iff in the costs of the action/ Prior to the enactment of this statute, it was held that the complaint must aver a demand at the place. g But these cases have been expressly overruled by the later cases. The statute only applies, in case of notes governed by the law-mer- chant, to the maker of the note. A demand at the time and place of payment must be made, notwithstanding the statute, iu order to fix the liability of an indorser. His promise to pay is conditional, and only renders him liable on demand and failure to pay by the maker. It is necessary, therefore, in that class of cases, that a demand on the maker, at the proper time and place, should be alleged. 11 388. Certainty required in averments of subject-matter. The certainty required in averments relating to the subject-matter must necessarily depend very much upon the nature of the case. The statements should be sufficiently certain to convey clearly to the court and to the opposite party "every fact material to the plaintiff's recovery, and disclose the cause of action so that the pleadings and judgment thereon will be sufficient to bar a second action on a plea of res adjudicate. It is said in a late work on practice, that the require- ment of the code that the cause of action shall be so stated as to " en- (e) R. S. 1881, 368. Church v. Moore, 1 Ind. 289; English, (f) The Indiana, etc., R. R. Co. v. Adm'r, r. The Board of Trustees of the Davis, 20 Ind. 6; The Eaton, etc., R. Indiana Asbury University, 6 Ind. R. Co. v. Hunt, 20 Ind. 457; McCul- 437; The Marion, etc., R. R. Co. r. lochr. Cook, 34 Ind. 290; Washington Dillon, 7 Ind. 404; The Marion, etc.. t>. Planters' Bank, 28 Am. Dec. 333 (1 R. R. Co. v. Lomax, 7 Ind. 648; The Howard, 230); McNarry v. Bell, 24 Marion, etc., R. R. Co. v. Hodge, 9 Ind. Am. Dec. 454; Wolcott v Van Sant- 163. voort, 8 Am. Deo. 396, and note. (h) McCulloch v. Cook, 34 Ind. 290. (g) The Wardens, etc., of St.' James' 264 PLEADINGS THE COMPLAINT. [CHAP. able a person of common understanding to know what is intended," is impracticable, as no one but a lawyer can understand pleadings.' This is the reverse of complimentary to the profession. There is no reason why a pleading can not be so worded as to be understood by a man of common understanding as well as any other paper. The fail- ure to state the facts that they may be so understood is a mark of a bad pleading as well as a plain violation of the code. CERTAINTY OF DESCRIPTION. 389. Of personal property. The decided cases show great lib- erality in the requirement of certainty in matter of description. This is particularly noticeable in descriptions required in actions to recover personal property . j The rule is that the description must be sufficient to identify the property. 390. In actions relating to real estate. The rule as to the certainty required in alleging the place where real estate is situate has been considered. As a question of jurisdiction, it is not necessary to show that it is in the county where the action is commenced ; k but there must be such a description of the property, to constitute a cause of action, that the sheriff, with the assistance of a surveyor, can find the real estate and determine its boundaries. 1 And to render the com- plaint sufficient, in this respect, it must, either by direct, averment or by the description set out, show in what county the real estate is situate, except where the court will presume it to be in the county as a juris- dictional fact. Where the description contained in any written instru- ment, made the foundation of an action, is defective and uncertain, the description may sometimes be made certain by proper averments in the complaint. 1 " And in such case the allegations, making the description certain, are necessary to make the complaint sufficient. (i) Iglehart's Prac. 13, 17. etc.. Turnpike Co. r. Eoberts, 3o Ind. (j) Heddy v. Fullen, 1 Blkf. 51; '24(3; Bowen v. Wood, 35 Ind. 268; Minchrod v. Windoes, 29 Ind. 288; White r. Hyatt, 40 Ind. 385; Struble Onstatt v. Ream, 30 Ind. 259; Ents- v. Neigh bright, 41 Ind. 344 ; Cochran minger v. Jackson, 73 Ind. 144; Tin- v. Utt, 42 Ind. 267; Rosenbaum v. dall v. Wasson, 74 Ind. 495. Schmidt, 54 Ind. 231 ; Simonton v. (k) Ante, ? 386. Thompson. 55 Ind. 87; Halstead v. (1) Whittlerea r. Beall, 5 Blkf. 143; The Board of Comm'rs of Lake Co., Magee v. Sanderson, 10 Ind. 261; Nolte 56 Ind. 363; Murphy r. Hendricks, 57 v. Libbert, 34 Ind. 163; The Jordan Ind. 593; English r. Roche. 6 Ind. 62. Ditching, etc.. Ass'n v. Wagoner, 33 (m) Halstcad v. The Board of Ind. 50; The Etchison Ditching Ass'n Comm'rs of Lake Co., 56 Ind. 363. v. Jarrell, 33 Ind. 131 ; The Harrison, XII.] PLEADINGS THE COMPLAINT. 265 The rule does not apply where the description in the mortgage or deed, which is the foundation of the action, is so defective as to render it void. In such case, the deed or mortgage conveys no title or creates no lien, and no averments of extrinsic matter can aid it." The complaint can not change or vary the description, by additional averments? The only office that can be performed by allegations of extrinsic mat- ter in this class of cases, is to make certain that which is uncertain, and the written instrument must bear on its face the matter by which its uncertainty can be cured. p If the deed or mortgage, after an imperfect description, refers, for a better description, to a certain other deed, properly identifying it, it is held that the deed thus referred to is, in effect, incorporated into the one making the reference, and, if the two together render a sufficient description, it is good. q In the case of Halstead v. The Board of County Comm'rs of Lake County, the rule as to the right of the plaintiff to aid a defective de- scription; by averments in the complaint, was stated thus : " When the description of the mortgaged property, contained in the mortgage, is so indefinite as to render the mortgage inoperative and void, no al- legations in a complaint upon the mortgage can make such complaint good. But where there is such a description in the mortgage as will render it operative to convey the property to the mortgagee, but not so definite as to enable a third person, in making sale of the property (an officer, for example), to specify the exact boundaries, in such case, if the complaint upon the mortgage alleges the true boundaries, the complaint will be good. Proof of the allegations may be made, and, upon such proof, the court, in its decree, may specify the true bounda- ries, and the officer may sell and convey accordingly." No test is given, in any of the authorities, by which to determine whether a case falls within one or the other branches of the rule. Each case depends upon the facts stated, and the notions of the court as to the extent of the uncertainty in the description in that particular case. A rule that can not be made applicable to all cases arising under it, is necessarily unsatisfactory, and this one is unusually so, as there is absolutely no test by which to determine whether any case is within it or not. Where a deed or other written instrument is referred to for a (n) Halstead v. The Board, etc., 56 (o) Baldwin v. Kerlin, 46 Ind. 426. Ind. 363, 373; Murphy v. Hendricks, (p) Howell v. Zerbee, 26 Ind. 214. 57 Ind. 593; Dingman v. Kelley, 7 ^q) White v. Hyatt, 40 Ind. 385. Ind. 717. 2G6 PLEADINGS THE COMPLAINT. [CHAP. description, the complaint should aver the existence of such deed or written instrument, that the real estate described therein is the same mentioned in and intended to be conveyed by the deed which is the foundation of the action, and the description in the writing should be fully and accurately set out. r Thus, the identity of the land and the writing referred to is fixed, and, if it contains a good description, it is made by such averments a part of the instrument sued on. Again, if the land should be described as the same sold by A. to B. on a certain day, the complaint should aver the fact that A. sold to B. certain real estate on the day named, giving its description, and that the real estate described is the same real estate mentioned in and intended to be con- veyed by the instrument in suit. It has been held, also, that where the mortgage described the real estate as lots in Carroll county, In- diana, numbering them, on which there was situated a paper-mill, and the complaint alleged that the mortgagors never at any time owned any other lots, in that county or elsewhere, on which was a paper-mill, the complaint was good. 3 The authorities bearing on the question are very numerous in this state. They have been cited in the foot-note. If one can be found, the facts of which are like the case the reader may have in hand, it will no doubt be good authority. If not, there is very little in the general rule laid down that can aid him. 391. Monuments control distances. If the monuments fixed by the description differ from the boundaries shown by the measure- ments, the monuments must control. The rule and the reasons upon which it is founded are thus stated by the supreme court: " The rule of law is, in such cases, that monuments, fixed, natural or artificial ob- jects, cognizable by the senses, control distances. The reason of this rule is said to be, and it is certainly a good one, that parties are sup- posed to inspect land before or at the time of purchase, in which in- spection they can easily recognize visible monuments, and thus acquire a definite idea of the boundaries of the land, which they could not ac- quire by measuring distances with the eye."' The quantity of land named in the deed or mortgage is controlled by the boundaries, and general are governed by particular descrip- tions. 392. In actions for specific performance of contracts to (r) White v. Hyatt, 40 Ind. 385. (t) Simonton v. Thompson, 55 Ind. (s) Bowen v. Wood, 35 Ind. 268. 87, 93; The Buffalo, etc., R. K. Co. v. Stigler, 61 N. Y. 348. XII.] PLEADINGS THE COMPLAINT. 267 convey real estate. The same particularity does not seem to be required in actions for specific performance as in actions relating to real estate. The rule is, that " where the description, so far as it goes, is consistent, but does not appear to be complete, it may be completed by extrinsic parol evidence, provided a new description is not introduced into the body of the contract ; " and the complaint must contain the averments of such extrinsic matter as may be necessary to render the description complete. 11 But the averments of the complaint can not substitute a new description, or change the one contained in the con- tract, as far as it goes/ 393. In actions to enforce mechanics' liens. The rule in this class of cases seems to be that, so far as the notice is concerned, it must contain such a description of the property as will clearly identify it. More liberality has been shown in passing upon the sufficiency of the descriptions contained in the notice than would be expected. Thus it has been held that a notice describing the property as " part of lot No. 110 and the improvements and buildings thereon," without designating what part, is sufficient. w In an earlier case, a notice describing the property as " the following real estate and the improvements thereon, belonging to the city of Crawfordsville, described as follows : part of lot No. 110 in the orig- inal plat of the city of Crawfordsville," was held bad for uncertainty. 1 The latter case does not overrule the former, but distinguishes it. The distinguishing mark between the two cases will not be easily de- tected. The court say it is the fact that in the notice held to be good the notice described that part of the lot on which the city hall stood. There does not seem to have been any allegation in the complaint making the description certain, by showing on what part of the lot t the city hall stood. Without such an averment the complaint must be held bad, whatever might be said of the notice. It was so held in the City of Crawfordsville v. Barr, supra. In the latter case the court say : " We consider the notice in this case as substantially an equiva- lent one to the notice contained, and held by this court to be sufficient, in the case of the City of Crawfordsville v. Johnson, 51 Ind. 397, and its sufficiency can, we think, be fairly sustained upon the theory that (u) Colerick v. Hooper, 3 Ind. 316; (w) The City of Crawfordsville v. Torr v. Torr, 20 Ind. 118 ; Baldwin v. Johnston, 51 Ind. 397; The City of Kerlin, 46 Ind. 426. Crawfordsville v. Barr, 65 Ind. 367. (v) Baldwin v. Kerlin, 46 Ind. 426; (x) The City of Crawfordsville v. Ferguson v. Staver, 33 Pa. St. 411 ; Irwin, 46 Ind. 438. Torr v. Torr, 20 Ind. 118. 268 PLEADINGS THE COMPLAINT. [CHAP. ' that is certain which may be rendered certain.' But to have made this notice operative to enforce the lien established by it, we are of the opinion that there ought to have been some averment in the complaint, particularly describing the part of the lot upon which the building re- ferred to in the notice was situated, so that the portion of the lot in- tended to be sold to satisfy the lien might have been described by proper metes and bounds, or by some appropriate subdivision of the lot in the order of sale and in the subsequent proceedings. 7 This seems to be the correct rule, and is consistent with the decisions with reference to descriptions in mortgages. 2 EXCEPTIONS TO COMMON-LAW RULES AS TO CERTAINTY. 394. Conditions precedent. The code expressly provides the manner of pleading in certain cases, and the degree of certainty re- quired. Thus, it is provided that, "in pleading the performance of a condition precedent in a contract, it shall be sufficient to allege, gener- ally, that the party performed all the conditions on his part. If the allegation be denied, the facts showing the performance must be proved on the trial." a The rule at common law was that, " in pleading the performance of a condition, the party must not plead, generally, that he performed the coDdition, but must show specially the time, place, and manner of performance." 11 It is open to question whether the section should be limited to con- ditions named in the contract, or whether it should be extended to con- ditions imposed by law. Mr. Bliss, in his work on Code Pleading, expresses the opinion that it should be confined to such conditions as are named in the contract, but admits that some of the authorities have given it a wider application. The learned author says: "But fora case or two in the Supreme Court of New York, I should unhesitatingly say, both upon principle und from the general spirit of the authorities, that this provision can only refer to conditions named in the contract sued on. First, the language of the statute would indicate that the condition was ' in the contract,' i. e., named in it and any other interpretation would ex- cuse the pleader from stating the facts that constitute the cause of ac- (y) Monger v. Green, 20 Ind. 38; (a) R. S. 1881, 370. Guy v. Barnes, 29 Ind. 100; Howell r. (b) Stephen PI. 334; Bliss' Code Zerbee, 26 Ind. 214; O'Halloran v. PI., 301 ; The Home Ins. Co. v. Duke, Leachey, 39 Ind. 150; Caldwell v. As- 43 Ind. 418. bury, .29 Ind. 451. (c) Bliss' Code PL, \ 302. (z) Ante, 390. XII.] PLEADINGS THE COMPLAINT. 269 tion. In suing ypon a contract with express conditions, he necessarily describes them, and when he avers a performance, though in general terms, the pleading shows precisely what he has done ; thus the whole pleading is logical, and the requirement to state the facts is complied with. But in pleading the conditions imposed by law as the demand and notice in an action against the indorser of a bill or note for the plaintiff to say that he has duly performed all the conditions on his part would aver no fact. To make the statement logical, he should state what conditions the law imposes, and then he might state their performance generally ; but that would be pleading law, which will not do. But it has been held in a few cases that an averment that a payment of a note was duly demanded, and that it was duly protested, was authorized by the clause under consideration." d In Indiana, the section has been confined, by the cases decided under it, to conditions expressly named in the contract, and it is believed this is the better rule. 6 But it must be admitted that while the cases where the question has been presented have not extended the provision of the code to conditions not named in the contract, they have not expressly decided that the code must be confined to conditions in the contract. The particular cases cited, as for instance, in the case of suits on promissory notes against the in- dorser, hold that in such cases the facts showing demand and notice must be stated, but they lay down no general rule by which to deter- mine what conditions are within the section under consideration, nor do they advert to the statute as having any bearing on the question. The decisions rest upon the ground that the allegation that notice was duly given, is a conclusion of law. The section, while it authorizes general pleading, should not be so construed as to permit the allegation of a conclusion of law. To plead generally that a party has performed all the conditions on his part is not pleading a conclusion of law but of fact. The court must, however, have regarded the condition'that de- mand shall be made and notice given as not being within this section of the code, though it is not so expressed. That a general allegation of performance is sufficient when the condition is expressed in the contract is clearly decided/ (d) Bliss' Code PI., 302. citing Gay (e) Iglehart's PI. and Pr., 22, ? 8; v. Paine, 5 How. Pr. 107; Adams r. Harbison v. The Bank, 28 Ind. 133; Sherrill, 14 How. Pr. 297 ; Bank of Armstrong v. Cook, 30 Ind. 22. Geneva v. Guliek, 8 How. Pr. 53; Ad- (f) Purdue v. Noffsinger, 15 Ind. ler v. Bloomingdale, 1 Duer, 602; 386; Masonic and Odd Fellows' Hall Butchers' Bank v. Jackson, 15 Abb. Co. v. Floyd, 20 Ind. 453; Bragg v. Pr. '220 (s. c., 24 How. Pr. 204). Bamberger, 23 Ind. 198; Plowman v. 270 PLEADINGS THE COMPLAINT. [CHAP. If the party, instead of availing himself of the right giveu him by the statute to plead performance generally, attempts to state the facts constituting performance, he must state such facts with the particularity and strictness required by the rules of the common law, and the statute can not aid the pleading. 8 395. The section does not apply to allegations of excuse for non-performance of conditions. The performance of a condition precedent need not be alleged in all cases. It may be waived by the op- posite party. Where performance is waived, the complaint must, in order to excuse the allegation of performance, allege such waiver. It is not sufficient to allege generally a waiver or other excuse for a failure to perform the condition, even where the performance could be generally averred. The facts constituting the excuse for non-per- formance must be specially alleged. 11 The statute does not apply to tender or offer to perform. In such case the facts must be alleged.' 396. Private statutes. The statute provides that " in pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its approval, and the court shall take judicial notice thereof. " j Prior to the code, private statutes were placed upon the same footing with statutes of other states or countries, and must be set out in full. The statute changes the rule by authorizing them to be pleaded by a mere reference to title and day of approval. When so pleaded, the court must take judicial notice of their contents. k But statutes of other states must be set out in full in the pleading. 1 In actions for penalties, under city and town ordinances, it is only necessary to give the number of the section and the date of its adoption." 1 397. Actions for libel and slander. "In an action for libel or slander it shall be sufficient to state, generally, that the defamatory Shidler, 36 Ind. 484; Mason r. Seitz, ( j) E. S. 1881, 371. 36 Ind. 516; Cromwell v. Wilkinson, (k) Wilson v. Clark, 11 Ind. 385. 18 Ind. 365; The Home Ins. Co. v. (1) Tyler v. Kent, 52 Ind. 583; Ir- Duke, 43 Ind. 418; Bailey v. Troxell, ving v. McLean, 4 Blkf. 52; Elliott v. 43 Ind. 432; Bruce v. Smith, 44 Ind. 1. Kay, 2 Blkf. 31 ; Titus v. Scantling, 3 (g) The Home Ins. Co. v. Duke, 43 Blkf. 372; Smith v. Muncie National Ind. 418. Bank. 29 Ind. 158; Busk. Prac. 15; (h) Purdue v. Noffsinger, 15 Ind. ante, 349. 386. (m) R. S. ]881, 3066; Whitson v. (i) Newby v. Rogers, 40 Ind. 9. The City of Franklin, "A Ind. 392. XII.] PLEADINGS THE COMPLAINT. 271 matter was published or spoken of the plaintiff; and if the allegation be denied the plaintiff must prove, on the trial, the facts showing that the defamatory matter was published or spoken of him." n The statute does not dispense with the necessity of alleging such ex- trinsic matter as may be necessary to show the words to be actionable where they are not so per se. But it is not required that the facts, showing that the words were spoken of the plaintiff, or that they were spoken in the presence of any person, should be stated. p 398. On judgments. " In pleading a judgment or decision of a court or officer of special jurisdiction, it shall be sufficient to allege, generally, that the judgment or decision was duly given or made. If the allegation be denied the facts conferring jurisdiction must be proved on the trial. " q This section, like the others dispensing with the particularity of averment formerly required, does not change the rules of evidence. If the fact of jurisdiction is denied by the defendant, it is as necessary, under the code as it was before, that the plaintiff shall prove that the court rendering the judgment had jurisdiction/ The plaintiff is not bound, however, to allege the facts show- ing the jurisdiction of the court, but may plead, generally, that the judgment was duly given or decision duly made. 9 It has been doubted, in some of the states, whether the statute ap- plied to a judgment from another state;* but there are numerous authorities in this state where the rule laid down in the statute has been recognized in actions on foreign judgments, and it has been ex- pressly held that the statute applies to such judgments." The pleader is not bound to adopt the manner of pleading author- ized by the statute. He may still plead the facts showing jurisdiction in the court rendering judgment, and if the facts stated are sufficient, (n) R. S. 1881, I 372. (s) Willey v. Strickland, 8 Ind. 453; (o) Shinloub v. Ammerman, 7 Ind. Draggoo v. Graham, 9 Ind. 212; Crake 347; De Armond v. Armstrong, 37 v. Crake, 18 Ind. 156; Snyder v. Snv- Ind. 35; Emerson v. Marvel, 55 Ind. der, 25 Ind. 399; Richardson v. Hick- 265; Ward v. Calyhan, 30 Ind. 395; man, 22 Ind. 244; The Toledo and Hart v. Coy, 40 Ind. 553. "Wabash and Western R. R. Co. v. (p) Hutts v. Hutts, 51 r lnd. 581; McNulty, 34 Ind. 531 ; Stiles v. Stew- Guard v. Risk, 11 Ind. 156. art, 27 Am. Dec. 142, and note. (q) R. S. 1881, 369. (t) Crake v. Crak, 18 Ind. 156. (r) Draggoo v. Graham, 9 Ind. 212; (u) Crake v. Crake, 18 Ind. 156. Willey v. Strickland, 8 Ind. 453. 272 PLEADINGS THE COMPLAINT. [CHAP. without the general allegation provided for in the statute, the com- plaint will be good in that respect. 399. In actions to contest wills. The statute regulating the contest of wills provides that any person may contest the validity of any will by filing, in the proper court, " his allegation in writing, verified by his affidavit, setting forth the unsounduess of mind of the testator ; the undue execution of the will ; that the same was executed under duress or was obtained by fraud, or any other valid objection to its validity or the probate thereof." v It has been held, under this statute, that there are but two causes named therein for contesting a will: (1.) The unsoundness of mind of the testator ; (2.) the undue execution of the will ; that duress, fraud, and other valid objections must be considered as within the sec- ond cause, and that a general allegation of either cause is sufficient without stating the facts. w Both the correctness and wisdom of this construction of the statute may well be doubted. The later cases seem to enforce the rule, because it has been so long established and acquiesced in. To allow the gen- eral allegation of undue execution to cover every cause for the contest of a will, except unsouudness of mind, including fraud and undue in- fluence, is to allow a degree of looseness in pleading that is not com- mendable, and gives the defendant no notice of the causes to be relied upon at the trial. This construction of the statute must be regarded as firmly settled by the authorities, whatever may be thought of its correctness. 400. Negligence. It would seem to be reasonable that in actions for damages, caused by negligence, it would be necessary to plead the facts constituting the negligence, as in case of fraud, but the authori- ties are the other way. It is held to be sufficient to allege the negli- gence in general terms, without stating the facts constituting the neg- ligence. 1 But while the negligence may be generally averred, the particular act charged to have been negligently done must be alleged. y (v) R. S. 1881, \ 2596. oils, etc., R. R. Co.r. Hamilton, 44 Ind. (w) Ken worthy v. Williams, 5 lid. 78; The Cincinnati, etc., R. R. Co. v. 375; Reed v. Watson, 27 Ind. 443; Chester, 67 Ind. 297; Cleveland, etc., Willetw Porter, 42 Ind. 250; Bowman Ry. Co. v. Wynant, 100 Ind. 160. v. Phillips, 47 Ind. 341; Etter v. Arm- (y) The Jetfersonville, etc., R. R. strong, 46 Ind. 197. Co. v. Dunlap, 29 Ind. 426; The Cin- (x) The Indianapolis, eto., 11. R. Co. cinnttti, etc-., R. R. Co. v. Chester, 57 v. Keeley, 23 1 nd. 133; The Indian-ip- Ind. 297, oi>i>; Hawley v. Williams, 90 olis, etc., R. R. Co. v. TaHe, 11 Ind. Ind. 160. F.>r forms of complaint, see 458; The JeflFersonville, etc., H. K. Co. Vol. 3, pp. 243-249. v. Dunlap, 29 Ind. 426; The Indianap- XH.] PLEADINGS THE COMPLAINT. 273 In the case of the Jefferson ville, etc., R. R. Co. v. Dunlap, the court say : " Certainly every rule of pleading which can be applied to the sub- ject, while dispensing with the necessity of a prolix statement of the particulars constituting negligence, do require that the act which was characterized by negligence shall be stated ;" and this language is quoted and approved in the case of the Cincinnati, etc., R. R. Co. v. Chester. The failure to allege the negligence more particularly does not ren- der the complaint bad on demurrer. The only remedy is to move to make the complaint more certain. 2 It will be noticed, upon an examination of the authorities cited, that the general averment is held to be sufficient in some of the cases, on the ground that it complies with the form of complaint provided for in that class of cases by the legislature. 3 But such pleading is held to be sufficient on other grounds. It is claimed that to plead fraud generally is to plead a conclusion of law, but to plead negligence in the same way is to plead the " ultimate fact," and to require any greater particularity would be to require the evidence to be pleaded. b It is difficult to see why it is not as much a conclusion of law to plead that an act is negligently done as to plead that it is fraudulently done. There is no good reason why the same particularity should not be required in the one case as in the other, except the one given in the decided cases, that the statute provides a form that dispenses with it. In this class of cases, besides the affirmative facts necessary to state a cause of action, it must be alleged that the plaintiff was without fault. It is not necessary, however, that the complaint should contain the direct allegation that the plaintiff was without fault. If the facts stated show that his negligence did not contribute to the injury, it is sufficient/ If the complaint alleges that the act causing the injury (z) The Cincinnati, etc., R. R. Co. v. Co. v. Bevin, 26 Ind. 443; Riest v. The Chester, 57 Ind. 297. City of Goshen, 42 Ind. 339; Higgins (a) 2 R. S. 1876, p. 360, Form No. 14. v. The Jefferson ville, etc., R. R. Co., 52 (b) Bliss' Code PI. 211. Ind. 110; The Cincinnati, etc., R. R. (c) The President, etc., of the Co. v. Katon, 53 Ind. 307; Louisville, Town of Mount Vernon v. Dusouchett, etc., R. R. Co. v. Boland, 53 Ind. 398. 2 Ind. 586; The Evansville, etc., R. R. (d) The Cincinnati, etc., R. R. Co. R. Co. v. Hiatt, 17 Ind. 102; The In- v. Eaton, 53 Ind. 307; Louisville, etc., dianapolis, etc., R. R. Co. v. Keeley, 23 R. R. Co. v. Boland, 53 Ind. 398: Ili-- Ind. 133; The Evansville, etc., R. R. gins v. The Jeffersonville, etc., R. I.'. Co. v. Dexter, 24 Ind. 411 ; The .lefler- Co , 52 Ind. 110; Maxfield r. The Cii> sonville, etc., R. R. Co. v. Hendricks. cinnati, etc., R. R. Co., 41 Ind. 269. 2C Ind. 228; The Toledo, etc., R. R. 18 274 PLEADINGS THE COMPLAINT. [CHAP. was willfully and purposely done, it is not necessary to aver that the plaintiff is without fault. 6 The general averment that the plaintiff is without negligence, will be controlled by the facts stated, and if the facts show that his fault contributed to the injury the complaint will be bad on demurrer, not- withstanding such averment, unless the injury was purposely and will- fully inflicted/ FRAUD. 401. Facts constituting the fraud must be stated. Gen- eral pleading is not permitted in alleging fraud. The allegation that an act was fraudulently done is a conclusion. The facts must be stated from which the court can determine whether a fraud has been committed or not. g It was held in Huston v. Williams, 3 Blkf. 170, that the general plea of " fraud, covin and false representation," was sufficient, but the later cases are clearly the other way. h CONSIDERATION. 402. When a consideration must be alleged. Certain con- tracts import a consideration on their face. In actions upon such con- tracts no consideration need be alleged. Contracts under seal, promis- sory notes, bills of exchange, and other written instruments, belong to this class.' The presumption of consideration is not confined to promissory notes negotiable under the law merchant, but applies equally to all written instruments assignable under the statute.- 1 And notes payable on a contingency are governed by the same rule. k (e) The Cincinnati, etc., R. R. Co. v. (h) Huston v. Williams, 25 Am. Eaton, 53 Ind. 307 ; The Terre Haute, Dec. 84. etc., R. R. Co. v. Graham, 46 Ind. 239; (i) R, 8. 1881, 450; Durland r. Pit- The Evansville, etc., R. R. Co. v. Low- cairn. 51 Ind. 426; Rogers v. Maxwell, dermilk, 15 Ind. 120; The City of Fort 4 Ind. 243; Leach v. Rhodes, 49 Ind. "Wayne v. De Witt, 47 Ind. 391. 291; Arnold v. Brown, 3 Blkf. 273; (f) The City of Fort Wayne v. De Nichols v. Woodruff, 8 Blkf. 493; Witt, 47 Ind. 391. Shirkey v. Rutherford, 10 Ind. 414; (g) Curry v. Keyser, 30 Ind. 214; Tibbetts W.Thatcher, 14 Ind. 86; Ba- Darnell v. Rowland, 30 Ind. 342; Kerr ker v. The Board of Comm'rsof Wwsh- v. The State, 35 Ind. 288; Keller v. ington County, 53 Ind. 497. Johnson, 11 Ind. 337; Webster v. Par- ( j) Durland ?-. Pitcairn, 51 Ind. 426; ker, 7 Ind. 185; Swope v. Fair, 18 Ind. Arnold v. Brown, 3 Blkf. 273. 300; Jenkins v. Long, 19 Ind. 28; Harm (k) Nichols v. Woodruff, 8 Blkf. 493. v. Greve, 34 Ind. 18. XII.] PLEADINGS THE COMPLAINT. 275 The fact that the note is made payable in property makes no difference. l Contracts that are assignable are named in the statute as "promis- sory notes, bills of exchange, bonds, or other instruments in writing, signed by any person who promises to pay money, or acknowledges money to be due, or for the delivery of a specific article, or to convey property, or to perform any stipulation therein mentioned."" 1 And as the statute makes all written instruments named therein negotiable, they import a consideration and none need be alleged. In actions upon contracts not negotiable by the law merchant or under the statute, a consideration must be alleged in the complaint." 403. Facts showing consideration must be pleaded. It is not sufficient to allege generally that the promise is upon a sufficient consideration. It is the province of the court to determine, from the facts stated, whether there is such a consideration as will uphold the contract, and such facts must be set out. The allegation that there is a consideration for the promise sued on is a mere conclusion. TITLE. 404. The complaint must show title. It was one of the rules of pleading at common law, that, " when in pleading, any right or authority is set up in respect of property, real or personal, some title in that property must be alleged in the party, or in some other person from whom he derives his authority. So if a party be charged with any liability in respect of property, real or personal, his title to that property must be alleged. " p It is not in every case concerning property that the plaintiff is re- quired to shoAV title ; but where his right of recovery depends upon his interest in the property, and the defendant is not in condition that he is estopped to deny the plaintiff's title, it must be alleged in the complaint. 405. Title to real property ; action to recover real estate. The manner of alleging title and the allegations necessary in a com- plaint to recover real estate are regulated by statute. " The plaintiff, (1) Streeter v. Henley, 1 Ind. 401; voord's PI. 217; Chitty's PI. 292; 1 Kogers v. Maxwell, 4 Ind. 243. Saunders' PI. and Ev. 187; Nichols v. (m) R. S. 1881, 5501. Nowling, 82 Iiul. 488; Wheeler v. (n) Leach v. Khodes, 49 Ind. 291; Hawkins, 101 Ind. 486. Brush v. Raney, 34 Ind. 416; Kobinson (o) Brush v. Raney, 34 Ind. 41'!; v. Barbour, 5 Blkf. 468; Van Sant- Leach v. Rhodes, 49 Ind. 291. (p) Stephens' PI. 304. 276 PLEADINGS THE COMPLAINT. [CHAP. in his complaint, shall state that he is entitled to the possession of the premises, particularly describing them, the interest he claims therein, and that the defendant unlawfully keeps him out of possession." q This statute would seem to make it necessary for the plaintiff to show specifically his interest in the real estate. This would require the complaint to disclose whether he claims a fee simple or a life es- tate, or whether his claim is legal or equitable. It has been held by the supreme court that where the plaintiff claims a fee simple, the allegation that he is the owner of the fee simple is a specific allegation of title, as it covers the whole interest ; but where he claims an interest less than the fee simple, he must state particularly what his interest is. It is not necessary in either case to show how he derived title/ There are cases, as we shall see hereafter, that seem to recognize the right of the plaintiff to plead his title generally, without showing whether his title is legal or equitable. 406. Can not allege a legal and recover on an equitable title. The advantage tha.t will accrue to the plaintiff by being allowed to plead ownership generally, without disclosing whether his title is legal or equitable, is sometimes very important. The rule is very well established that, if the complaint shows a legal title, the plaintiff can not recover at the trial by proof of an equitable title, although either, if alleged and proved, might entitle him to possession. If he alleges an equitable title, he can not recover by proving that he has a legal one. 8 407. Possession maybe recovered on an equitable title. At common law an action of ejectment could not be maintained except upon a legal title. This is still the law in some of the states. Thus, in Ohio it is provided that "in an action forthe recovery of real property it shall be sufficient if the plaintiff state, in his petition, that he has a legal estate therein, etc." 1 But this is not the law in Indiana. The plaintiff is required to state his interest in the real estate ; and if the interest is equitable, and such as would entitle him to hold possession, he may recover under the code." 408. "When ownership is alleged generally, can the (q) K. S. 1881, 1054; Vance v. (s) Kowe v. Beckett, 30 Ind. 154; Schroyer, 78 Ind. 80. Groves v. Marks, 32 Ind. 319. (r) McMannus -v. Smith, 53 Ind. (t) 2 K. S., Ohio, 1880, 5781. 211 ; Knight v. McDonald, 37 Ind. 463. (u) Burt v. Bowles, 69 Ind. 1. XH.] PLEADINGS THE COMPLAINT. 277 plaintiff recover on proof of an equitable title ? While it is well settled, in this state, that a party can net allege a legal title and recover by proof of an equitable one, it has been held that he may allege, generally, that he is the owner of the real estate, without dis- closing whether his title is legal or equitable. 7 If these cases are correctly decided (which may well be doubted), it must necessarily follow that the plaintiff has the right to recover, on proof that he is the oumer, whether his ownership is legal or equitable. It will not do, in such case, to say that the plaintiff can not recover on an equitable title because he alleges a legal title. The complaint does not disclose whether his title is legal or equitable, and therefore proof of an equitable title brings the case within the allegations of the complaint. In the case of Steeple v. Downing, the allegation was that the plaintiffs were "the owners, and entitled to the immediate posses- sion " of the real estate. The objection was not made to the complaint, that it did not dis- close the interest the plaintiffs claimed in the real estate. It was con- tended that the complaint was bad for other reasons. The court held, however, that the complaint was good on general demurrer. This case can not be made to harmonize with those holding that the plaintiff must allege that he claims a fee simple or state specifically what his interest is. This general manner of pleading title certainly was not in- tended by the code. If the plaintiff alleges what his interest in the real estate is, as the code plainly requires, he must necessarily disclose whether his title is legal or equitable, and any degree of certainty less than this should not be countenanced. w 409. Complaint need not show title in action, by landlord against tenant, for possession. In an action, by a landlord, against one holding the premises as his tenant, the complaint need not disclose the interest of the plaintiff in the real estate. This is on the ground that the tenant, having contracted with him as the owner, is estopped, in an action for possession, to deny the landlord's title, and because the cause of action is on the lease and the title is not involved. 1 But this estoppel only applies to the time when the contract of leas- ing took place. If the landlord's title has since expired the tenant is not estopped to show the fact. 7 (v) Steepler. Downing, 60 Ind. 478; Mattox v. Hebn, 15 Am. Dec. 64. (5 Burt 17. Bowles, 69 Ind. 1 ; Schenck r. Littell, 185); Taylor's Landlord and Kelley, 88 Ind. 444 ; Vol. 3, p. 148. Tenant, \ 705. (w) Antr-, 405. (y) Kinney v. Doe, 8 Blkf. 350; (x) Kinaey v. Doe, 8 Blkf. 850; Murray r. Mounts, 19 Ind. 364; Tay- Blakemoro v. Tabor, 22 Iml. SG6; Zim- lor's Landlord and Tenant, 706. merman v. Marchland, 23 Ind. 474; 278 PLEADINGS THE COMPLAINT. [CHAP. This would not make it necessary, however, that the complaint should disclose his title, as the presumption would be as against the tenant, that the title that existed at the time of the leasing continued. In order to avoid the necessity of showing title in the plaintiff, it must appear that the defendant is holding as tenant at the time the action is brought. If he has surrendered possession as tenant, and taken possession claiming adversely, the plaintiff must recover on his own title, and the defendant is not estopped to deny it. z 410. In actions for forfeiture for the failure of condition subsequent. Conditions subsequent are not favored in law, and are strictly construed against a grantor and his heirs. a And it has been held that, as in this class of cases, only the grantor or his heirs can take advantage of the forfeiture, the complaint must show that the grantor was the owner in fee at the time of the convey- ance, or it will be bad on demurrer. b 411. For trespass on land. As a rule, where an action is brought, in which the right of recovery by the plaintiff depends upon his having title in the real estate, such title must be alleged in the complaint. This is not the rule, however, where the action is for damages resulting from the wrongful act of the defendant, as in case of trespass on land, where the action may be maintained on the allegation and proof of possession without showing title. And in an action for a nuisance the rule is the same. d But there are cases where the plaintiff may recover for trespass by proof of title without proving actual possession, as in case of a grantee, who, at the time the trespass is committed, has not yet taken posses- sion. Where the right of recovery, as in this class of cases, depends upon his title and not possession, title must be alleged. 6 There can be no recovery when there is an adverse possession in another/ Where the plaintiff has such possession as will support the action, title should not be averred, as the proof must, in such case, correspond (z) Zimmerman v. Marchland, 23 PI., 22, 227; Wilson v. Bibb, 25 Am. Ind. 474. Dec. 118 (1 Dana, 7). (a) Hunt v. Beeson, 18 Ind. 380; (d) Barber v. Barber, 21 Ind. 468; Heaston v. The Board, etc., 20 Ind. Cromwell v. Lowe, 14 Ind. 234. 398; Clark v. Holton, 57 Ind. 564. (e) Wood v. Mansell, 3 Blkf. 125; (b) Clark v. Holton, 57 Ind. 564. Raub v. Heath, 8 Blkf. 575. (c) Conner v. The President, etc., of (f) Wood v. Mansell, 3 Blkf. 125; New Albany, 1 Blkf. 88; Bliss' Code Broker v. Scoby, 56 Ind. 588. XTI.] PLEADINGS THE COMPLAINT. 279 with the allegation, and the failure to prove title will defeat a recover)', although the allegation is unnecessary. 8 Notwithstanding the necessity of possession to support the action, the complaint will be good if it alleges that the plaintiff is the owner in fee, as the court will presume that the plaintiff is in possession from the allegation of ownership. 11 412. To recover personal property. The question whether title must be alleged in actions relating to personal property, depends upon the nature of the action. As a rule, where the action is to re- cover possession, it is not necessary to show title. But it must be alleged that the plaintiff is entitled to the immediate possession.' When the plaintiff bases his right upon the ownership of the prop- erty he must allege title in the complaint; but the general allegation, that he is the owner and entitled to possession, is sufficient. J There are authorities holding that while the plaintiff may recover by proving the right to immediate possession, the complaint, to be good, must allege ownership in the plaintiff. k But, whatever the rule may be elsewhere, the statute clearly con- templates an action, not only by the owner, but any person " claiming the possession thereof." l 413. In actions on promissory notes. In this class of ac- tions, where suit is brought by an assignee, the complaint should show, not in terms that he is the owner of the note sued on, but that it has been assigned or indorsed to him. The failure to make such averment will not, ordinarily, render the complaint bad on demurrer, as the presumption is that the party in possession of a note is the owner of it. m But there is a class of cases where the failure to allege an indorse- ment to the plaintiff will render the complaint bad on demurrer. The statute requires that where a note is transferred, by delivery or without (g) Barber v. Barber, 21 Ind. 468; Ind. 414; Simcoke v. Frederick, 1 Broker v. Scoby, 56 Ind. 588. Ind. 54. (h) Conner v. New Albany, 1 Blkf. (k) See the note to Orser v. Storms, 88; Broker v. Scoby, 56 Ind. 588. 18 Am. Dec. 543, where the right to (i) Highnote v. White, 67 Ind. 596; maintain the action of replevin, trover. Rose v. Cash, 58 Ind. 278; Moorman and trespass is thoroughly considered, v. Quick, 20 Ind. 67 ; Catterlin v. and numerous authorities cited. Mitchell, 27 Ind. 298. (1) R. S. 1881, 1216. (j) Rowell v. Klein, 44 Ind. 290; (m) Lemon v. Temple, 7 Ind. 556; Lacy v. "Weaver, 49 Ind. 373 ; Bailey Bush v. Seaton, 4 Ind. 522; Williams T. Troxel, 43 Ind. 432; Davis v. War- r. Dyer, 5 Blkf. 160; Mendenhall v. field, 38 Ind. 461 ; Noble v. Epperly, 6 Banks, 16 Ind. 284. 280 PLEADINGS THE COMPLAINT. [CHAP. indorsement, the assignee must be made a defendant, to answer as to the assignment. 11 And this rule applies to claims against executors or administrators. If suit is brought against the maker, without joining the payee, the complaint must show, by a direct averment, the manner in which the transfer to the assignee was made, whether by delivery or in writing, as such averment determines who are necessary parties. 1 ' The word indorsement implies a " writing on the back ; " and it has been held that where the complaint alleges 'an assignment in writing the supreme court will presume that the assignment is by a separate instrument, and the complaint will be bad if the assignor is not made a defendant. q In the case of Hill v. Shalter it was held that the allegation that the " note was indorsed and assigned, by the payee to the plaintiff," was sufficient to show an indorsement by " writing on the back." The ground upon which the authorities are based is that the assign- ment by indorsement is necessary, under the statute, to vest the legal title to the note in the indorsee ; and while an assignment by a sepa- rate writing, or by delivery, amounts to such an equitable assignment as will authorize the assignee to sue as the real party in interest, the payee being the legal owner of the note, must be made a party to an- swer as to the assignment. This is for the protection of the maker, and is absolutely necessary to the sufficiency of the complaint. If the facts stated in the complaint show that the indorsement is in writing to the plaintiff, this is sufficient, or it may be alleged generally. The averment that the note has been indorsed to the plaintiff is a sufficient allegation that he is the party entitled to sue upon it, and the aver- ment of an assignment or delivery is also sufficient where the assignor is made a defendant/ But where the plaintiff sets out the facts specifically, which show that he has no title, the complaint will be held bad, although it con- tains a general averment of ownership. 8 (n) E. S. 1881, 276; Vol.3, p. 56. (q) The Marion, etc., Gravel Road (o) R. S. 1881, 2324. Co. v. Kessinger. 66 Ind. 549; Keller (p) Barcus v. Evans, 14 Ind. 381; v. Williams, 49 Ind. 504; Hill v. Shal- Treadway v. Cobb, 18 Ind. 36; Clough ter, 73 Ind. 459. v. Thomas, 53 Ind. 2t; Holman v. (r) Bliss' Code PI., ?? 232, 23H. Langtree, 40 Ind. 349 ; Kline v. Spahr, (s) Richardson v. Snyder, 72 Ind. 56 Ind. 296; Hill v. Shalter, 73 Ind. 425. 459. XII.] PLEADINGS THE COMPLAINT. 281 IN ACTIONS OTHER THAN FOR MONEY OR SPECIFIC PROP- ERTY, THE COMPLAINT MUST SHOW THAT THERE IS NO OTHER ADEQUATE REMEDY. 414. Rule not changed by the code. While the code has changed the forms of actions as they existed at common law and in equity, the remedy remains the same. It is necessary, therefore, as it was under the old system, where the plaintiff asks for equitable relief, that he should show in his complaint that he has no adequate remedy in what would have been a common- law action.* Usually the statement of the facts constituting the plaintiff's cause of action, in this class of cases, will show that he has no remedy at law. Where this is the case, no direct averment is necessary. But the complaint must either, by a direct allegation or by a statement of the facts, show that there is no adequate remedy at law, or the com- plaint will be insufficient. IN AN ACTION FOUNDED ON A WRITTEN INSTRUMENT, THE ORIGINAL OR A COPY MUST BE FILED WITH AND MADE A PART OF THE COMPLAINT. 415. The statute. The statute provides: "When any pleading is founded on a written instrument or on account, the original, or a copy thereof, must be filed with the pleading. A set-off or a counter- claim is within the meaning of this section." u This section of the code changes the common-law rule that allowed the pleader to set out the instrument according to its legal effect. The object of the section is to bring the instrument before the court, that the court may determine what is its legal effect. In some of the states having similar provisions, it is held that the instrument is no part of the complaint. 7 This is upon the ground that the filing of the copy of the instrument takes the place of profert at common law. w (t) Baragree v. Cronkhite, 33 Ind. (u) K. S. 1881, \ 362. 192; Laughlin v. The President, etc., (v) Bates' Ohio PI. and Par. 99; Lari- of Lamasco City, 6 Ind. 223; Me- more v. Wells, 29 Ohio St. 13 ; Nathan Quarrie v. Hildebrand, 23 Ind. 122; v. Lewis, 1 Handy, 239; Sargeant v. Cooper v. Hamilton, 8 Blkf. 377 ; The Moore, 1 Disney, 99; West v. Dod- Indianapolis Kolling Mill Co. v. The worth, 1 Disney, 161 ; Cairo and Ful- City of Indianapolis, 29 Ind. 245 ; The ton Pv. R. 7;. Parks, 32 Ark. 131 ; Bowl- Centerville. etc., Turnpike Co. v. Bar- ing v. McFarland, 38 Mo. 465; City of nett, 2 Ind. 536; Bolster v. Catterlin, Los Angeles v. Signoret. 50 Cal. 298. 10Ind.ll7; Ploughe v. Boyer, 38 Ind. (w) K. S. Ohio, \ 5085; Memphis 113; Schwab v. The City of Madison, Med. Coll. v. Newton, 2 Handy, 163; 49 Ind. 329; Mather v. Simon ton, 73 Egan v. Tewksbury, 32 Ark. 43. Ind. 595. 282 PLEADINGS THE COMPLAINT. [CHAP. But the authorities are otherwise in. Indiana. The section is not construed as making profert of the instrument necessary by filing a copy with the pleading. The instrument is held to be a part of the complaint, and the failure to file the original or a copy, where it is the foundation of the action, is fatal to the complaint on demurrer. 1 And this rule has been carried to the extent that the filing of a copy of the instrument with 'one paragraph of a pleading can not aid another par- agraph, where the instrument is a necessary part of both. y But one copy is sufficient for all the paragraphs of a complaint, if referred to and made part of each. 2 The written instrument may be copied into the complaint, and this will be sufficient.* Where the instrument is lost, or in the possession of the opposite party, or can not for any other sufficient reason be set out, the facts constituting the excuse must be stated. 6 416. Exhibits control averments in pleading. Not only is the written instrument regarded as a part of the pleading in this state, but its terms can not be varied or changed by its averments. Where there is a variance between the pleading and the exhibit filed, the ex- hibit must control. c 417. What is a written instrument within the meaning of the section. The section is plain enough in its terms, but the difficulty has been in determining what written instruments are in- cluded within its provisions. The profession and the courts were in- clined, at the outset, to give it the broadest construction, and every (x) Mercer v. Herbert, 41 Ind. 459; (y) The Pennsylvania Co. v. Hol- Seawright v. Coffman, 24 Ind. 414; derman, 69 Ind. 18. Price v. The Grand Rapids, etc., R. R. (z) Post, 422; Peck v. Hensley. 21 Co., 13 Ind. 58; Herron v. Clifford's Ind. 344; Maxwell v. Brooks. 54 Ind. Adm'r, 18 Ind. 411 ; West v. The Bull- 98. skin Prairie Ditching Co., 19 Ind. 458; (a) Adams v. Dale, 29 Ind. 273. Westfall v. Stork, 24 Ind. 377 ; Spauld- (b) Peabody v. Peabody, 59 Ind. 556. ing v. Baldwin, 31 Ind. 376 ; Plowman (c) Mercer v. Herbert, 41 Ind. 459; v. Shidler, 36 Ind. 484; Hamrick v. Stafford v. Davidson, 47 Ind. 319; Craven, 39 Ind. 241; Galbrentli r. Me- Crandall v. The First National Bank Neiley, 40 Ind. 231 ; King c. The En- of Auburn, 61 Ind. 349; Carper v. terprise Insurance Co., 45 Ind. 43; Garr, Scott & Co., 70 Ind. 212 ; Hurl- Cook v. Hopkins, 66 Ind. 209; The but v. The State, 71 Ind. 154; The City Pennsylvania Co. v. Holderman, 69 of Elkhart v. Simonton, 71 Ind. 7; Ind. 18; Brown v. The State, 44 Ind. Bayless v. Glenn, 72 Ind. 5; Cress v. 222. Hook, 73 Ind. 177 ; The Watson Coal and Mining Co. v. Casteel, 73 Ind. 296. XII.] PLEADINGS THE COMPLAINT. 283 class of writing that was the foundation of the action was required to be filed with the pleading. The later decisions show an inclination to limit the section to such written instruments as are signed by the party to be charged. The decided cases do not establish any rule by which to determine what shall be regarded as within the section. There are certain writings that have been expressly held not to be written instruments within the meaning of the section. Judgments are not written instruments. d It was held otherwise in some of the earlier cases ; e but these cases are expressly overruled by the case of Lytle v. Lytle. In the latter case the court say : "After mature con- sideration, we have come to the conclusion that a proper construction of that section of the code and a regard for convenience and economy in practice require us to hold that a judgment is not a written instru- ment within the meaning of that section. Deeds, mortgages, bonds, written contracts, promissory notes, bills of exchange, etc., are written instruments. Judgments are in writing, but are not usually called written instruments. TJie legislature, in framing and enacting the section, evidently had in view only instruments of which ' tiie original or a copy ' might be filed, as the party might elect. The original of a judgment can not be filed." This case furnishes a test by which to determine whether a writing is a*" written instrument" or not. If it is one of which the original might be filed, it is included within the statute, and must be filed. If the original can not be filed, the copy is not necessary. If this rule had been adhered to, the pleader could easily determine whether the writing upon which he founds his action is a written instrument within the statute. But the decided cases can not be harmonized with this rule. In the case of city ordinances it was uniformly held that a copy must be filed with the complaint, until a special statute was enacted making it sufficient to refer to the section alleged to be violated, and give the date of its adoption/ The same rule is applied in proceedings to review judgments. The entire record must be made part of the complaint, although the statute (d) Brooks v. Harris, 41 Ind. 390; Morris v. Amos, 15 Ind. 365 ; The State Lytle v. Lytle, 37 Ind. 281 ; Campbell v. Marshall, 20 Ind. 287 ; Sugar Creek v. Cross, 39 Ind. 155; Wyant r.Wyant, Township v. Johnson, 20 Ind. 280; 38 Ind. 48; Hinkle v. Reid, 43 Ind. Bates v. Simpson, 19 Ind. 388. 390; Morrison v. Fishel, 64 Ind. 177; (f) Green v. The City of Indianap- "Wilson 17. Vance, 55 Ind. 584 ; Me- olis, 25 Ind. 490; Green v. The City Sweney v. Carney, 72 Ind. 430; Jones of Indianapolis. 22 Ind. 192; Whitson r. Levy, 72 Ind. 586 ; Berry v. Reed, v. The City of Franklin, 34 Ind. 395 ; 73 Ind. 235. Schwab v. The City of Madison, 49 (e) Resor v. Raney, 14 Ind. 441 ; Ind. 329. 284 PLEADINGS THE COMPLAINT. [CHAP. authorizing the proceeding does not require it. g It has been held, also, that assessments in favor of a turnpike company, or other cor- poration organized under the statute, are written instruments within the meaning of the section. 11 In a later case the court seems inclined to doubt whether an assessment is such a written instrument as must be filed, 1 but the court expressly waives a decision of the point. A tax duplicate has been held not to be within the statute.J 418. When the 'written instrument is the "foundation of the action." The statute only requires the original, or a copy of the written instrument, to be filed, when it is the foundation of the action or defense. It maybe necessary, where the instrument is to be used as evidence, that it should be accurately described, but it could not be properly set out in the pleading. The question, whether a written instrument is the foundation of the action or not, is not always easily determined. If it is the contract which contains the promise sued on, there can be no question ; but there are other cases that can not be determined by this easy test. The decided cases can not furnish a rule by which to determine. All that can be done is to look to the cases holding that a particular instrument is or is not to be regarded as the foundation of the action as illustrating the section. No authority need be cited to show that in actions on promissory notes, bills of exchange, written contracts signed by the party to be charged, or in the foreclosure of mortgages, the writing is the foundation of the action. It has been held, however, in an action by the assignee against the maker of a promissory note, that the in- dorsement need not be set out, as it is not the foundation of the action. k It was held to be necessary in some of the earlier cases, 1 but these cases were expressly overruled in Treadway v. Cobb. Where the action is against the indorser the indorsement is his con- tract, and, as against him, is the foundation of the action, and must be set out. m In an action for possession of real estate, and to quiet the title, the deed to the plaintiff is not the foundation of the action." (g) Stevens v. Parish, 29 Ind. 260; Co., 73 Ind. 179; Treadway v. Cobb, Davis v. Perry, 41 Ind. 305. 18 Ind. 36; Kline v. Spahr, 56 Ind. (h) Dobson v. The Duck Pond 296; The Indianapolis, etc., Co. v. Ditching Association, 42 Ind. 312; First Nat. Bank of Indianapolis, 33 The Jordan Ditching Association v. Ind. 302. Wagoner, 33 Ind. 50. (1) Connard v. Christie, 16 Ind. 427. (i) Gossett v. Tolen, 61 Ind. 388. (rn) Treadway v. Cobb, 18 Ind. 36; (j") iiazzard v. Heacock, 39 Ind. Moreau v. Branson, 37 Ind. 195. 172; Ewing v. Robeson, 15 Ind. 26. (n) Lash v. Perry, 19 Ind. 322; (k) Tilman v. Barter, 38 Ind. 1 ; Burkholder v. Casad, 47 Ind. 418. Morgan v. The Smith American Organ XII.] PLEADINGS THE COMPLAINT. 285 In an action to set aside a conveyance as fraudulent, the fraud is the foundation of the action, and the deed need not be set out. In an action on a recognizance a copy must be filed. p Where it is claimed that an executor is entitled to the care and cus- tody of the testator's children, by the terms of the will, the will is the foundation of the claim, and must be filed with the pleading.* 1 So in an action on an appeal bond, the bond is the foundation of the action/ In an action to restrain the collection of, and vacate a judgment, the execution issued on the judgment is not the foundation of the ac- tion. 8 In an action on the covenants in a deed, the deed is the foundation of the action. 1 In an action to recover money paid on a judgment at the request of the judgment debtor, the judgment is not the foundation of the action." Nor is it where the surety has been compelled to pay the judgment and brings his action to recover the amount paid from the principal/ 419. Must be referred to and made part of the pleading. It is not sufficient that the instrument is filed with the pleading. There must be such a reference to it in the pleading with which it is filed as will properly identify it and make it a part thereof. w But it has been held to be sufficient in an action on a note that the note be filed and referred to as "a copy of which is filed herewith," without a direct averment that it is " made a part" of the complaint. 1 It is not sufficient to allege in the pleading that the instrument is filed. It must not only be referred to, but must be actually filed Avith the pleading/ 420. Written instruments not the foundation of the ac- tion can not aid the pleading. It is only where the written in- strument is the foundation of the action that it can be made a part of (o) Bray v. Hussey, 24 Ind. 228; (u) Holcraft t>. Halbert, 16 Ind. 256. Jager v. Jager. 49 Ind. 428. (v) Barker v. Glide well, 23 Ind 21!>. (p) Votaw v. The State, 12 Ind. (w) The Peoria. etc., Insurance C>. 497; Riser v. The State, 13 Ind. 80. v. \Valser, 22 Ind. 73; Hiatt v. Goblt. (q) Hillisu. Wilson, 13 Ind. 146. 18 Ind. 494; Stafford v. Davidson. 47 (r) Butler v. Wadloy. 15 Ind. 502. Ind. 319; Rogers v. The State, 78 In.!. (s) Fuller v. The Indianapolis, etc., 329. R. R. Co., 18 Ind. 91 : Trueblood v. (x) Carper v. Kitt, 71 Ind. 24; ileeJ Hollin-isworth, 48 Ind. y,l . v. Broadbelt, C8 Ind. 91. (tl Wnodt'ord r. Leavenworth, 14 (y) Busk. Pr.ie. 183; Conwell v. Ind. 311; Laughery r. McLean, 14 Clifford, 45 Ind. 392. Ind. 100; post, \ 619. 286 PLEADINGS THE COMPLAINT. [CHAP. the pleading. When it is not the foundation of the action, and is filed with the pleading, it can not aid it in any way. The pleading must be good, without reference to the written instrument filed, or it will be subject to demurrer/ It is important, therefore, that the pleader should determine, before preparing his pleading, whether the instrument is the foundation of the action or mere evidence of his right to recover. If there is doubt, the instrument should be filed ; but for safety the averments should be made so full that the pleading will be good within itself, without reference to the writing, if it should be held not to be the foundation of the action. In this way the pleading will withstand a demurrer in either contingency. 421. Contract not alleged to be in writing conclusively presumed to be verbal. It is important that the complaint should allege the fact when the contract sued on is in writing. If it is not alleged it will be conclusively presumed that it is verbal. 3 It is held in some of the states that where the contract sued on is required by the statute of frauds to be in writing, and the complaint fails to show whether it is in writing or not, the court will presume that a valid contract is intended, and that it is in writing. 1 " But the rule is very clearly settled the other way in Indiana. The conflict in the authorities grows out of the different constructions placed on the statute requiring the writing to be filed with the pleading. In this state it is held that as the statute requires the contract to be filed, if in writing, it will be presumed that it is verbal, or it would be set out as the statute requires. It was held otherwise in some of the earlier cases, d but they are expressly overruled. 422. The same copy may be referred to and made part of (z) Knight v. The Flatrock, etc., art, 54 Ind. 178; Foreman v. Beckwith, Turnpike Co., 45 Ind. 135; The Ex- 73 Ind. 515. celsior Draining Co. v. Brown, 38 Ind. (b) 1 Bates' Ohio PI. and Par. 109, 384; Jager v. Jager, 49 Ind. 428; citing Marston v. Sweet, 66 N. Y. 206; Watkins v. Brunt, 53 Ind. 208 ; Wil- Taylor v. Patterson, 5 Dreg. 121 ; Me- son v. Vance, 55 Ind. 584; Cress v. Donald v. Mission View Homestead Hook, 73 Ind. 177; Briscoe v. Johnson, Ass'n, 51 Cal. 210; First Nat, Bank v. 73 Ind. 573. Kinner, 1 Utah Ty. 100; Walsh v. Kat- (a) Suman v. Springate, 67 Ind. 115 ; tenburg, 8 Minn. 127; Ecker r. McAl- Goodrich v. Johnson, 66 Ind. 258 ; Har- ister, 45 Md. 290 ; Mullaly v. Holden, per v. Miller, 27 Ind. 277; Crosby v. 123 Mass. 583. Jeroloman, 37 Ind. 264; Berkshire v. (c) See authorities cited, supra; Younge, 45 Ind. 461 ; Krutz v. Stew- Krohn v. Bantz, 08 Ind. 277. (d) Harper v. Miller, 27 Ind. 277. XII.] PLEADINGS THE COMPLAINT. 287 every pleading in the case. It may sometimes occur that the same written instrument is the foundation of the cause of action, and also of the defense and of a cause of action existing in the defendant's favor, that may be set up by way of counterclaim. Where this is the case, and the written instrument or a copy is filed with the com- plaint, it may be made a part of any paragraph of any pleading filed in the cause by proper reference and making it a part of such para- graph. 6 The application of the rule to cross-complaints is denied in some of the decided cases ; f but these cases may be regarded as overruled on this point by the later case of Sidener v. Davis. This last case seems to be open to criticism. It is held that it is sufficient for the cross- complaint to refer to the written instrument as being the contract, " of which a copy is filed with the complaint." This language is simply a reference to what is filed with the complaint, without in any way in- corporating it in or making it a part of the cross-complaint. This, we have seen, is not sufficient. 8 It should not only be referred to, but it should be made a part of the subsequent pleading by the proper aver- ment. ACTIONS AGAINST HEIRS FOR DEBTS OF ANCESTOR. 423. What complaint must show. The creditor is not always bound to file his claim against the estate, but may sue the heirs, de- visees, or distributees of the debtor. The complaint must show that the estate of the deceased debtor has been finally settled, the date of such settlement, that the defendants have received property from the deceased, and that the plaintiff, for the six months prior to the final settlement, was either insane, an infant, or out of the state. The heirs, devisees, and distributees may be sued jointly. h DEMAND FOR RELIEF. 424. The complaint should contain a prayer for relief. It is not necessary that the plaintiff should state specifically the relief demanded. A general demand will entitle him to such relief as the facts stated authorize the court to grant. 1 ie) Maxwell v. Brooks, 54 Ind. 98; (h) Ante, 303; K. S. 1881, 2442, Patterson v.Vaughn, 40 Ind. 253; Sid- 2449; Rinard v. West, 48 Ind. 159; ener v. Davis, 69 Ind. 336. Stephen v. Tucker, 73 Ind. 73; Faulk- (f ) Campbell v. Routt, 42 Ind. 410 ; ner v. Lonbee, MS. Case 8,408, Nov. 4, Bmnbaiu v. Johnson, 62 Ind. 259. 1881 ; Carr v. Huette, 73 Ind. 378. (g) Ante, 419. (i) Eaton v. Burns, 31 Ind. 390; Shattuck v. Cox, 07 Ind. 242. 288 PLEADINGS THE COMPLAES T [CHAP. The prayer for relief is regarded, under the code, as matter of form, aud where the facts stated entitle a party to any remedy, the com- plaint will be good on demurrer, without a demand for relief.J And a prayer in the last paragraph of the complaint is held to be sufficient for all. k The statute requires that in actions for money the amount claimed should be stated in the demand for relief; 1 but the failure to state the amount will not render the complaint bad on demurrer." 1 425. Prayer can not enlarge, but may diminish the cause of action. The facts stated in the complaint fix the amount of the plaintiff's right of recovery, and this right can not be enlarged by the demand for relief. 11 But it is sometimes important to ask for enough, as the recovery can not exceed the amount asked for in the prayer. This rule was formerly applied in all cases. But these cases were overruled in a later decision, so far as they lay down this broad proposition.? The statute provides that " the relief granted to the plaintiff, if there be no answer, can not exceed the relief demanded in his complaint ; but, in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue." q 426. Complaint must be signed by the plaintiff or his at- torney. The statute provides : " Sec. 358. Every pleading, in a court of record, must be subscribed by the party or his attorney." 1 The failure to sign the pleading is taken as a formal defect, and, in the supreme court, it will be considered as amended if no objection is made in the court below. 8 But where a motion is made, in the court below, to strike the plead- (j) Lowry v. Dutton, 28 Ind. 473; 233; Roberts v. Muir, 7 Ind. 544; Goodall v. Mopley, 45 Ind. 353 ; Baker O'Neal v. Wade, 3 Ind. 410; Billingsly v. Armstrong, 57 Ind. 189. v. Dean, 11 Ind. 331. (k) Maladay v. McEnary, 30 Ind. (p) Webb v. Thompson, 23 Ind. 429; 273. Raymond v. Williams, 24 Ind. 416; (1) R. S. 1881, 2 338, sub. 4. Robinson v. Jameson, 33 Ind. 122; (m) The Louisville, etc., R. W. Co. Barnes v. Smith, 34 Ind. 516; Baker v. v. Smith, 58 Ind. 575; Brown v. By- .Simmons, 40 Ind. 442. roads, 47 Ind. 435. (q) R. S. 1881, 385. (n) The Board, etc., v. Cutler, 7 (r) R. S. 1881, g 358; Riley v. Mur- Ind. 6; Hunter v. McCoy, 14 Ind. 528; ray, 8 Ind. 354. Sohn v. The Marion, etc., Gravel Road (s) Harris u. Osenback. 13 Ind. 445; Co., 73 Ind. 77. Lowry v. Dutton, 28 Ind. 473; Fank- (o) May v. The State Bank, 9 Ind. boner v. Fankboner, 20 Ind. 62. Xn.] PLEADINGS THE COMPLAINT. 289 ing from the files, for the reason that it is not signed, it must be sus- tained.' 4.27. Cross-complaint. The rules of pleading affecting cross- complaints are the same as those applied to the original complaint. They must state facts sufficient to constitute a cause of action inde- pendent of any of the averments in the original complaint. The only difference between the two kinds of complaint is, that one is by the plaintiff and the other by the defendant, so far as the question of their sufficiency is concerned." WHEN COMPLAINT SHOULD BE VERIFIED. 428. Only necessary as a rule -where extraordinary relief is demanded. The statute requires, in^certain cases, that the com- plaint shall be verified, and in other cases, where there is no statutory provision requiring it, the supreme court has held it to be necessary. But the failure to verify the complaint is not cause for demurrer, but must be reached by motion. v The requirement that the complaint shall be sworn to, applies only to cases where some extraordinary remedy is demanded, as the taking of property or restraining the defendant from the commission of some act and the like. In actions brought by infants, it is not necessary that the plaintiff shall verify the complaint. It may be done by the nejct friend. w 429. In replevin. In actions to recover personal property, an affidavit is necessary only where the immediate possession of the prop- erty is demanded. 1 The plaintiff may prosecute his action to final judgment without demanding a delivery of the property in which case no affidavit is necessary. 7 It is not usual, nor is it necessary, that the complaint should be sworn to even where the delivery of the property is demanded. The statute contemplates an affidavit showing the facts authorizing the seizure and delivery of the property ; but where the necessary facts are stated in the complaint, it is sufficient to verify the complaint without filing a separate affidavit. 2 But as the affidavit is only necessary to the issuing of the writ for possession, the failure to verify the complaint or make the necessary (t) Fankboner v. Fankboner, 2Q (w) Turner v. Cook, 36 Ind. 129. Ind. 62. (x) R. S. 1881, \ 1267. (u) E wins v.Patterson, 35 Ind 326; (y) Catterlin v. Mitchell, 27 Ind. 298. Campbell v. Routt, 42 Ind. 410; Shoe- (z) Minchrod v. Windoes. 29 Ind. maker v. Smith, 74 Ind. 71. 288. (v) Post, I 503. 19 290 PLEADINGS THE COMPLAINT. [CHAP. affidavit, can only affect the writ and does not render the complaint bad on demurrer. 430. Injunction. The rule in injunction cases is much like that in replevin. If the plaintiff demands a restraining order or temporary injunction, his complaint must be verified ; but if he demands an in- junction only upon a final hearing, the verification is unnecessary. 3 431. Mandate and prohibition. Writs of mandate and prohi- bition can issue only on affidavit and motion. The writ is regarded, in practice, as the complaint, and the demurrer must be to the writ and not to the affidavit ; but the affidavit is necessary under the stat- ute, and without it the writ will be quashed. 1 * 432. Attachment. In attachment 'an affidavit is necessary. But the affidavit forms no part of the complaint, and is only necessary to authorize the issuing of the writ. The complaint may, however, if verified, supply the place of the affidavit, where it contains the neces- sary facts. d 433. Arrest and bail. In connection with a civil proceeding, the defendant may be arrested and imprisoned in default of bail. 6 The proceeding, like that in attachment, is dependent upon the original action, and can not be sustained alone. The basis of the pro- ceeding is an affidavit ; but where the arrest is applied for at the time the action to recover the debt is commenced, the complaint will supply the place of the affidavit, if it contains the necessary averments and is verified/ 434. To review judgment. In actions to review judgments for error appearing on the face of the record, the complaint need not be verified ; but where the complaint is for new matter, discovered since the rendition of the judgment, its verification is rendered necessary by the express terms of the statute. 8 435. Execution against the body. The statute authorizes an execution against the body in certain cases. h Before such execution can issue, an affidavit must be filed with the (a) The Sand Creek, etc., Turnpike (d) Dunn v. Crocker, 22 Ind. 324. Co. v. bobbins. 41 Ind. 79; Rich v. (e) R. S. 1881, 856 et seq. Dessar, 50 Ind. 309; R. S. 1881, 1148, (f ) R. S. 1881, 857. 1149. (g) R. S. 1881, 617. (b) 11 S. 1881, fg 1108, 1169; Potts (h) R. S. 1881, 791 et se'q. v. The State, 75 Ind. 336; post, 546. (cj R. S. 1881, 913. XII.] PLEADINGS THE COMPLAINT. 291 clerk, charging the debtor with fraudulently concealing, removing, conveying, or transferring his property subject to execution, with intent to defraud and delay the plaintiff, or charging that the debtor has money, rights, credits, or effects, with which the judgment, or some part thereof, might be paid, and which he fraudulently withholds or conceals, with a view to delay or defraud the creditor. 1 But the affida- vit need not state specifically the property fraudulently concealed or withheld.^ 436. Proceedings supplementary to execution. Where au execution has been issued against the property of the judgment debtor, the execution plaintiff, or some one in his behalf, may file an affida- vit with the clerk of any court of record of any county, showing that such judgment debtor, residing in the county, has property, describing it, which he unjustly refuses to apply towards the satisfac- tion of the judgment; and upon such affidavit being filed, the debtor will be required to appear and answer the same. k The debtor may also be imprisoned, or required to give special bail, upon the proper affidavit being made by the plaintiff, his agent or attorney. 1 The affi- davit, in this class of cases, is in the nature of a complaint, and may be tested by demurrer. Some of the earlier cases held that no other pleadings were proper. But the later cases hold that pleadings may be filed and issues formed as in other cases. n 437. Proceedings to revive judgments. Upon the death of the judgment debtor the judgment creditor may cause the heirs, devisees, or legatees of such debtor, or the tenant of real property owned by him and affected by the judgment, and the personal repre- sentatives of the decedent, to be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands. The proceedings must be commenced by the affidavit of the judgment creditor, his representative or attorney, showing that the judgment has not been satisfied, to his knowledge, or information, and belief, the amount due thereon, and the property sought to be charged. The affidavit may be in the form of a com- (i) R. S. 1881, 792. (m) Coffin v. McClure, 23 Ind. 356; (j) II. S. 1881, 793. Carpenter v. Van Scotten, 20 Ind. 50; (k) R. S. 1881, 816; Mason v. Wes- Cooke v. Ross, 22 Ind. 157; Iglehart's ton, 29 Ind. 561; Fillson v. Scott, 15 Prac. 336, 43. Ind. 187; Briscoe v. Askey, 12 Ind. (n) Banty v. Buckles, 68 Ind. 49; 666; "Witherow v. Higgins, 13 Ind. The Toledo, "Wabash and Western R. 440; Chandler v. Caldwell, 17 Ind. 256. W. Co. v. Howes, 68 Ind. 458; McMa- (1) R. S. 1881, I 817. ban . Works, 72 Ind. 19; post, 637. 292 PLEADINGS THE COMPLAINT. [CHAP. plaint ; but, whether it is or not, issues may be formed upon the facts charged therein, and it is in effect a complaint. 438. Ne exeat. This proceeding is only authorized in. actions upon ' ' agreements in writing before the time for the performance of the contract expires." It may be by a complaint sworn to, or by com- plaint and affidavit, showing the facts required by the statute. The object of the statute is to authorize the plaintiff to sue before his debt is due ; and in order to authorize such a proceeding, it must appear, by the affidavit, or sworn complaint of the plaintiff, that the defendant is about to leave the state without performing or making provisions for the performance of the contract, taking with him property, moneys, credits, or effects subject to execution, with intent to defraud the plaintiff? Issues may be formed upon the allegations of the affidavit, as well as the complaint, where they are separate ; and a failure to sustain the facts charged in the affidavit must defeat the en tire action, as the right to maintain the action on the agreement, before due, rests upon the facts required by the statute to be stated in the affidavit.* 1 The proceeding can not be commenced by affidavit alone. There must be a complaint/ 439. Habeas corpus. Writs of habeas corpus can only issue upon a complaint verified by the plaintiff or by some person in his behalf. 3 440. Proceedings to contest -wills. In proceedings to contest wills the complaint must be verified.' It has been held to be sufficient if the complaint is sworn to by one of the plaintiffs." 441. Applications to set aside default. The application is not required to be by complaint. It may be by either a complaint or motion, but in either case the application must be verified. T 442. Complaint for new trial. The statute does not require that a complaint for a new trial for causes discovered after the term (o) R. S. 1881, g? 621, 622, 623. (t) R. S. 1881, 2596. (p) R. S. 1881, 1178, 1179. (u) Willett v. Porter, 42 Ind. 250. (q) Iglehart's Prac., p. 129. (v) Post, 461 ; The Toledo, etc., R. (r) Ramsey v. Foy, 10 Ind. R. Co. v. Gates, 32 Ind. 238; Yancy v. (s) R. S. 1881, 1108. Teter, 39 Ind. 305. XH.] PLEADINGS THE COMPLAINT. 293 shall be sworn to, w and the authorities on the point are not uni- form. It was first held that the complaint must be verified. 1 In a later case, it was held to be unnecessary. y But it has since been held that the complaint should be sworn to. z (w) R. S. 1881, 563. (y) Allen v. Gillum, 16 Ind. 234. (x) McDaniel v. Graves, 12 Ind. 465. (z) Cox v. Hatchings, 21 Ind. 219. 294 PROCEEDINGS AFTER COMPLAINT FILED. [CHAP. CHAPTER XIII. PROCEEDINGS AFTER COMPLAINT FILED. SECTION . 1. WHERE PART OF DEFENDANTS ARE NOT SERVED WITH PROCESS. 443. The statute. 444. Effect of the statute. 445. Amendment of section 641. 2. WHERE THERE IS A RETURN OF NOT FOUND. 446. The statute. 447. Judgment taken against one de- fendant abates action as to oth- ers, unless continued as to them. 3. WHERE THE PARTIES ARE SERVED WITH PROCESS, OR ENTER AN AP- PEARANCE DEFAULT. 448. When default may be taken. 449. Default, where there is no appear- ance. 450. Where appearance is withdrawn. 451. Default, on failure to answer in- terrogatories. 452. Where a defendant fails to attend as a witness for plaintiff. 453. Answer must be stricken out be- fore default can be taken. 454. Can not be taken against an in- fant. 455. What is admitted by a default. SECTION. 456. Does not admit jurisdiction of court, or that complaint states a cause of action. 457. When defendant is constructively summoned. 4. RIGHTS OF DEFENDANTS AFTER DE- FAULT. 458. May contest amount of damages. 459. May appeal to the supreme court. 5. WHEN AND HOW DEFAULT SET ASIDE. 460. The statute. 461. Application may be by motion or complaint. 462. What motion or complaint must contain. 463." How proof made in applications to set aside default, and what may be controverted. 464. Effect of setting aside default taken against one of several de- fendants. 465. Court can not set aside default, on condition that costs are paid. 466. Section 396 does not apply to ac- tions for divorce. 467. The section applies to plaintiffs. 468. Effect of setting aside default. I. WHERE PART OF DEFENDANTS ARE NOT SERVED WITH PROCESS. 443. The statute. " Sec. 320. Where the action is against two or more defendants, and the summons is served on one or more, but not all of them, the plaintiff may proceed as follows : "First. If the action be against defendants jointly indebted on con- XIII.] PROCEEDINGS AFTER COMPLAINT FILED. 295 tract, he may proceed against the defendant served ; and if he recover judgment, it may be enforced against the joint property of all and the separate property of the defendant served. "Second. If the action be against defendants severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants, and may afterward proceed against those not served. "Third. If all the defendants have been served, judgment maybe taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them or any of them alone." a " Sec. 321. In all cases where judgment has heretofore been or shall hereafter be recovered against one or more persons jointly liable on contract, but such judgment has been or shall be rendered only against part of the persons liable, for the reason that the others were not sum- moned and did not appear, the plaintiff may proceed against those not summoned, and who did not appear in the same manner, as if they were alone liable, but the complaint must allege the facts as afore- said." 11 444. Effect of the statute. At common law but one judgment could be recovered on a joint contract, and the recovery of judgment against one of the joint obligors released the others. The sections of the code above quoted were intended, no doubt, to remedy this seeming defect. -Whether this result has been attained has been seriously considered by the supreme court prior to the amend- ment of section 641, in 1881. d The section, as it originally stood, did not authorize the taking of a judgment against those not served, but provided that the defendants " who were not originally summoned to answer the complaint, may be summoned to show cause why they should not be bound by the judg- ment in the same manner as if they had been originally summoned." 6 It was held in Erwin v. Scotten that the two sections, 41 and 641, should be construed together, and that the rule that existed at com- mon law, that all those jointly liable must be sued together, and that a judgment against one released the others, was not changed by either section. The only effect of the two sections, as construed by the su- preme court, was to authorize the plaintiff to take judgment against (a) R. S. 1881, I 320. (d) Erwin v. Scotten, 40 Ind. 380; (b) R. S. 1881, ? 321. R. S. 1881, 321. (c) Freeman on Judg., 231, and (e) 2 R. S. 1876, p. 265, \ 641. authorities there cited. 296 PROCEEDINGS AFTER COMPLAINT FILED. [CHAP. one defendant, and afterward bring the defendant not served before the court, and bind him by the same judgment. This did not au- thorize two judgments. Its only effect was to give the plaintiff the right to take a judgment at once, without waiting to get all of the par- ties before the court, as he must have done at common law, under the penalty of releasing all those not served. The section had not then, and has not now, any effect upon the right of a plaintiff to sue a part of several joint obligors. It only affects the right to take judgments where all have been sued. If the plaintiff sues one of several joint obligors and recovers judgment, those not sued are released as at com- mon law. 445. Amendment of section 641. By the revision of 1881 sec- tion 641 of the code is materially changed. It provides that the plaintiff may proceed against those not summoned, and who did not appear " in the same manner as if they were alone liable, but the complaint must state the facts." f Under the section as amended it can no longer be said that the com- mon-law rule is not changed. If the parties are all joined in the ac- tion, but some have not been served, they may be proceeded against not as jointly liable, but " as if they were alone liable." The practical effect of the section, as amended, is to make the procedure the same in actions on joint as upon several contracts, after the action has once been properly instituted, save that in case 6f a joint liability the com- plaint must state the facts showing the recovery of a judgment against those originally summoned, and that the present defendants were not summoned before the recovery of the original judgment. The pay- ment of either of the judgments must necessarily satisfy the other, except as to cost. While the mode of procedure in recovering the judgments is changed, the original liability of the parties to the con- tract must be the same, and a payment of one of the judgments must satisfy the other. And it should not be overlooked that parties jointly liable must be jointly sued, as before the amendment. If one is sued alone, and judgment recovered against him, the other joint contractors are thereby released, and the rule is the same where all have been sued and served with process. The statute only affects cases where all have been sued and a part not summoned.^ (f) K. S. 1881, 321. man, 21 Ind. 29; Maiden v. Webster, (g) Gibbons v. Surber, 4 Blkf. 155; 30 Ind. 317; The State v. Koberts, 40 Morris v. Knight, 1 Blkf. 106; Palmer Ind. 451. v. Crosby, 1 Blkf. 139; Archer v. Hei- XIII.] PROCEEDINGS AFTER COMPLAINT FILED. 297 2. WHERE THERE IS A RETURN OF " NOT FOUND." 446. The statute." Sec. 322. When there is a return of ' not found,' as to any of the defendants, such return shall be suggested on the record, and the plaintiff may continue the cause as to them for another summons at his option ; and he may in either case proceed against the defendants served in time." h Under the construction given tiii.- section by the supreme court, it was of no force whatever prior to the amendment of section 641, as it was held not to apply to actions on joint contracts. 1 In the case cited, the supreme court was divided in opinion as to the construction that should be given to this section, the majority of the court holding that it only applied to actions on several contracts, while Downey, J., in a dissenting opinion, maintained that it should be applied to joint as well as several contracts. If the section is properly confined to actions on several contracts, its enactment was en- tirely unnecessary, as the plaintiff might, under section 320, take the same course provided for by this section. The same thing could have been done without any statutory provision. As has been shown, there is no practical difference, since the amendment of section 641, between joint and several contracts. So far as the procedure is concerned, sec- tion 322 might, with perfect propriety and consistency, be extended to both kinds of actions. It would probably have beeu better if this sec- tion had been omitted in the, revision of the code, as it seems to be un- necessary, and confers no additional right upon the plaintiff. 447. Judgment taken against one defendant abates ac- tion as to others, unless continued as to them. Where there has been service on part of the defendants and the others not found under section 322, the return of " not found" should be suggested on the rec- ord. It is not necessary that the return should be entered of record. The statute only requires that the suggestion should be entered of rec- ord.J If judgment is taken against part of the defendants, without continuing the action as to the others, the action abates as to those not served. The plaintiff is not bound to continue as to those not summoned, even in an action on a joint contract. It is optional with him either to dismiss or continue as to them, but if he desires to follow up his remedy against the defendants who are not before the court, it is im- portant for him to continue as to them, and although there may be a continuance without a suggestion of not found on the record, it is the (h) R. S. 1881, ? 322. (j) Erwin r. Scotten, 40 Ind. 389. (i) Erwin v. Scotten, 40 Ind. 389. 298 PROCEEDINGS AFTER COMPLAINT FILED. [CHAP. better practice to follow section 822, by having the suggestion of not found, followed by a continuance, which should precede the judgment against the parties before the court. 3. WHERE THE PARTIES ARE SERVED WITH PROCESS OR ENTER AN APPEARANCE DEFAULT. 448. When default maybe taken. The purpose of this sec- tion is not to consider the practice where the defendant appears and contests the action, but those cases where, after being properly sum-' moned, or having entered an appearance, refuses or neglects to plead or take some subsequent step in the case, on account of which a default may be taken against him. This may occur where a defendant, prop- erly served with process, fails to plead, or where, after having appeared to the action and answered, he neglects or refuses to comply with some rule of the court, as, for instance, a rule to answer interrogatories. The cases in which defaults may be taken, and the effect of the de- fault, as well as the practice in setting aside judgments in such cases, and obtaining such other relief as may be given by statute, will here be considered. (1) 449. Default where there is no appearance. On the second day of the term, or upon such other subsequent day as the summons may be made returnable, the plaintiff may have the defendants called. If no appearance is entered, either in person or by attorney, a default may be taken. k But a default can not be taken on the first day of the term, although the summons is made returnable on that day. 1 Nor can a rule of court change the statutory provision that defaults may be taken only on the second and subsequent days.' 1 -' It is important, where a judgment is taken by default, that summons should be properly issued and served, as a judgment by default, with- out proper service, can not be upheld." 450. Where appearance is withdrawn. The defendant may withdraw his appearance, unless objected to by the plaintiff. If, how- ever, the appearance has been entered without the service of process, the court may, in its discretion, refuse to permit the appearance to be withdrawn. (k) R. S. 1881, 400,401; Langdon ley v. Gaff, 56 Ind. 331; Mitchell v. v. Bullock, 8 Ind. 341 ; Macy v. Eller, McCorkle, 69 Ind. 184. 11 Ind. 352; Heed v. Spayde, 56 Ind. (m) Clegg v. Fithiun, 32 Ind. 90. 394. (n) Fee v. The State, 74 Tnd. 66. (1) Clegg v. Fithian, 32 Ind. 90; Jel- (o) Youns* v. Dickey, 63 Ind. 31. (1) See Vol. 3, pp. 186, 187. PROCEEDINGS AFTER COMPLAINT FILED. 299 The same rule applies where there is a defect in the summons or its service, that is waived by au appearance to the action.? If the appearance is withdrawn after an answer or demurrer has been filed, the withdrawal of the appearance withdraws such pleadings, and the cause stands precisely as if no appearance had been entered, and a default may then be taken. q 451. Default on failure to answer interrogatories. Where a defendant is ruled to answer interrogatories, upon his failure to do so, a default may be taken against him, after striking out his answer. 452. Where a defendant fails to attend as a witness for plaintiff. As under our practice the parties are competent to testify, either party may have the other subpoenaed as a witness and compel his attendance/ In addition to the ordinary mode of compelling the attendance of a witness by attachment, where the defendant disobeys the subpoena, a default may be taken against him. 8 453. Answer must be stricken out before default can be taken. Where the defendant has once appeared to the action and filed au answer, no default can be taken against him, although he may afterwards fail to appear. 1 The same rule applies where a demurrer to the complaint has been filed by the defendant and remains undisposed of. u . It follows that before a default can be taken against a defendant for failure to comply with a rule of court, or attend as a witness where he has appeared and answered the complaint, or has a demurrer to the complaint undisposed of, his pleading must first be stricken out. The authorities cited, it Avill be noticed, apply to answers in bar of the action. The same rule must apply to any other answer, so long as it remains undisposed of. The true rule is, that a default can not be taken where an issue of law or fact has been joined and remains undis- posed of. Therefore, if a plea in abatement has been filed, an issue has been presented that must be determined before a default can be (p) The New Albany, etc., R. R. (t) Harris v. Muskingum Man. Co., Co. v. Combs, 13 Ind. 490. 4 Blkf. 267; Maddox v. Pulliam, 5 (q) Young v. Dickey, 63 Ind. 31; Blkf. 205; Ellison v. Nickols, 1 Ind. Smith v. Foster, 59 Ind. 595; Carver 577; Kir by v. Holmes, 6 Ind. 33; Ter- .. Williams, 10 Ind. 267; Sloan v. rell v. The State, 68 Ind. 155; Carver Whitbank, 12 Ind. 444. e. Williams, 10 Ind. 267; Coffin v. The (r) li. Z. 1881, \l 496, 509. Evansville, etc., R. R. Co., 7 Ind. 413; (s) R. S. 1881, 513 ; Nelson v. Nee- Woodward v. Wous, 18 Ind. 296. ley, 63 Ind. 194; Belton v. Smith, 45 (u) Kellenberger v. Perrin, 46 Ind. Ind. 291. 282. 300 PROCEEDINGS AFTER COMPLAINT FILED. [CHAP. taken ; but where an answer in abatement has been filed and decided against a defendant, a default may be taken against him on his failure to answer over. v It has been held by the supreme court that, where an answer has been filed and the defendant refuses to attend as a witness, the court may, instead of striking out his answer, render judgment against him as upon confession. w This may be said to be within the spirit of the statute, as it leads to the same result, but besides the fact that the court thus renders judg- ment as upon confession, when judgment has not been confessed, it is better to follow a statute that is so plain as not to be misunderstood, rather than resort to some other remedy that may be within its spirit. 454. Can not be taken against an infant. Infants must ap- pear as defendants by guardian ad litem,* No default can be taken against an infant defendant, nor has the guardian ad litem the power to waive the service of process. y He has no authority to file an answer until he has ascertained that the infant defendants have been properly served with process. No steps can be legally taken against such defendants until they have been served with process, a guardian ad litem has been appointed and an answer has been filed by him. 2 The rule goes still farther. After answer filed by guardian ad litem, proof of the material allegations of the complaint must be made to authorize a recovery. No admission or waiver can be made by the guardian ad litem that will supply the omission to make such proof. a But where the evidence is not in the record, and there is nothing on the face of the record to show that the judgment was given without evidence, the supreme court will presume that the judgment was rendered on proper evidence. 13 (v) K. S. 1881, 365. Parker, 1 Ind. 374; Driver v. Driver, (w) Belton v. Smith, 45 Ind. 291. 6 Ind. 286; Knox v. Coffey, 2 Ind. (x) R. S. 1881, 258; ante, 93. 161 ; Martin v. Starr, 7 Ind. 224; Al- (y) Bobbins v. Bobbins, 2 Ind. 74; exander v. Frary, 9 Ind. 481; McEn- Pugh v. Pugh, 9 Ind. 132; People v. dree v. McEndree, 12 Ind. 97; Abdil Stanley, G Ind. 410; Martin r. Storr, 7 v. Abdil, 26 Ind. 287; Hawkins v. Ind. 224; Doe v. Anderson. 5 Ind. 33. Hawkins, 28 Ind. 66. (z) Pugh v. Pu<*h. 9 Ind. 132; (b) Alexander v. Frary, 9 Ind. 481 ; Hough v. Canby. 8 Blkf. 301 ; Abdil w. McEndree v. McEndree, 12 Ind. 97; Abdil, 26 Ind. 287; Alexander v. Fra- Bennett v. Welch, 15 Ind. 332; Hyatt ry, 9 Ind. 481. v. Hyatt, 33 Ind. 309, 313 (dissenting (a) Hough v. Doyle, 8 Blkf. 300; opinion). Hough v. Canby, 8 Blkf. 301 ; Grain v. XIII.] PROCEEDINGS AFTER COMPLAINT FILED. 301 It was otherwise under the old chancery practice, which required that the transcript, in a chancery suit, should contain all the evidence given in the court below. 455. "What is admitted by a default ; the statute. A de- fault does not admit that the plaintiff is entitled to recover the amount demanded in his complaint, nor the amount alleged or shown by the facts stated to be due. In some of the states where the facts stated in the pleadings must be sworn to, it is expressly provided that the amount indorsed on the summons in an action for money shall fix the amount of the judgment, where the defendant fails to answer. Our code provides: " Every material allegation of the complaint not con- troverted by the answer, and every material allegation of new mat- ter in the answer not controverted by the reply shall, for the pur- pose of the action, be taken as true; but the allegations of new matter in a reply are to be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require. Allegations of value or amount of damage shall not be considered as true by the failure to controvert them; but in actions upon accounts, in which an itemized bill of particulars, the correctness of which is.duly affirmed or sworn to by the plaintiff or some one in his behalf, has been filed with the complaint, a default by the defendant shall be deemed to ad- mit the correctness of the bill of particulars as sworn or affirmed to, and judgment may be rendered thereon without further evidence. " d With the exception of actions on account, where an itemized bill of particulars is filed with the complaint and sworn to, a default admits "the cause of action and the material and traversable averments of the complaint, and that something is due the plaintiff, but leaves the amount open to be determined by the proof. 6 In an early case in our own supreme court a different view seem? to have been taken of the effect of a default/ (c) Bennett v. "Welch, 15 Ind. 332; 619; Welch v. Wadsworth, 30 Conn. dissenting opinion in Hyatt v. Hj^att, 149 ; Saunders' PI. and Ev., vol. 2, pt. 33 Ind. 309, 313. 1, p. 218; De Gaillon r. L'Aigle, 1 R. & (d) R. S. 1881, 383. P. 368; Stephens v. Pell, 2 Dowl. P. (e) Briggs v. Sneghan, 45 Ind. 14, C. 629; Williams v. Cooper, 3 Dowl. 24, citing Turner v. Carter, 1 Head. P. C. 204; Blackwell v. Green, Lofft. 520; Town of Ottawa r. Foster, 20 111. 82; S. P. Anon., Lofft, 372; Greene v. 296; Chicago and Rock Island R. R. Hearne, 3 T. R 301; Anon., 3 Wils. Co. v. Ward, 16 111.522; Herrington v. 155; Bevis v. Lindsell, 2 Stra. 1149. Stevens, 26 111. 298; Saltus v. Kipp, 5 See also R. S. 1881, 345, 401; 31, - Duer, 646; Willson v. Willson, 5 Fos- Kinney v. The State, 101 Ind. 35 ter (N. H.), 229; Dates v. Loomis, 5 (f) May v. The State Bank, 9 Ind. Wend. 134; Brill v. Neale, 1 Chit. 233. 302 PROCEEDINGS AFTER COMPLAINT FILED. [CHAP. In the case cited the action was brought on a bill of exchange for $5,000. The demand in the complaint was for $3,500. There was a default, and after hearing the evidence, judgment was rendered in the court below for 5,357. It was claimed, on appeal, that the plaintiff could not recover more than the amount for which judgment was de- manded in the complaint. The court so held, and properly ; but, in- stead of placing the decision upon the ground that where proof is made in case of default no greater amount can be recovered than is de- manded in the complaint, it is put upon the ground that the default was an admission that that amount was due, the court saying: "The default on tohich the plaintiff founds her judgment admitted an indebtedness to the amount of $3,500, and no more." This case is not referred to in the later one of Briggs v. Sneghau, but the two are so clearly in conflict that the first must be regarded as overruled. 456. Does not admit jurisdiction of court or that com- plaint states a cause of action. A defendant, against whom a default has been taken, may appeal to the supreme court, and although his default admits that the plaintiff has a cause of action, it does not admit that a cause of action is stated in the complaint or that the court has jurisdiction. These questions may be raised on appeal. 8 But under the revised code, as amended, the objection that the action was brought in the wrong county is waived by the failure to demur or answer, and the default would admit, in such case, that the action, in this re- fepect, is properly brought. In divorce cases, judgment can not be taken by default. The facts alleged in the complaint must be proved. h 457. When defendant is constructively summoned. Where the defendant has only been constructively summoned, the al- legations of the complaint are not admitted, but must be proved. The statute provides: " The statements of a complaint against a defendant constructively summoned, and who has not appeared, except such as are for his benefit, shall not be taken as true, but must be established by proof." ' This statute does not apply where the defendant has once appeared to the action. (g) K. S. 1881, \ 343; Strader v. 30 Ind. 398; Newhouse v. Miller, 35 Manville, 33 Ind. Ill; Hallett v. Ind. 463 ; Kiley v. Butler, 36 Ind. 51 ; Evans, 28 Ind. 61 ; Barnes v. Conner, Smith v. Carley, 8 Ind. 451. 39 Ind. 294; Barnes v. Bell, 39 Ind. (h) Scott v. Scott, 17 Ind. 309. 328; Wright v. Norris, 40 Ind. 247; (i) K. S. 1881, \ 387. Busk. Prac. 36, 171 ; Livesey v. Livesey, XIII.] PROCEEDINGS AFTER COMPLAINT FILED. 303 4. RIGHTS OF DEFENDANT AFTER DEFAULT. 458. May contest amount of damages. It has been shown that a defendant, by failing to answer and permitting a default to go against him, does not admit the amount to be due that is demanded in tiie complaint. Without proof, the plaintiff can recover no more than nominal damages. Not only is the plaintiff bound, after a default, to prove his damages, but the defendant may, without asking to have the default set aside, appear in the action and contest the amount of dam- ages. For this purpose, he may appear by counsel and demand a juryJ The case of Briggs v. Sueghan was carefully considered, and the rule clearly stated after a thorough review of the authorities. The court say: " We think that, from the foregoing authorities, it should be considered as settled that a judgment by default admits the cause of action and the material and traversable averments, and that some- thing is due the plaintiff, but leaves the amount open to be determined by the proof; that in the assessment of damages the defendant may appear and demand a trial by a jury ; that he may cross-examine the witnesses called by the plaintiff; that he may call other witnesses and prove any matter which properly goes to extenuate or mitigate the damages ; that he may prove all the facts and circumstances relating to any immediate provocation which, in judgment of law, tends to mitigate damages ; that he may require the court to give to the jury proper instructions as to the measure and extent of damages ; that he may, by himself and counsel, argue the question of damages ; that he may move for a new trial ; that he may reserve, by bill of exceptions, any question affecting the assessment of damages ; but that the right of a defendant in an inquest of damages does not extend so far as to allow him to introduce a substantive defense, but subject to this quali- fication, he may show that the plaintiff has no legal claim to any but nominal damages." This authority certainly carries the right of a defendant to appear and defend to the farthest extent. The decision is, however, fully borne out by the adjudicated cases in other states and in England. The court say the right of the defendant does not extend so far as to allow him to introduce a substantive defense. If the court had in- formed us what was meant by a " substantive defense," the rule laid down would have been clearly stated. Strictly speaking, the right of a defendant after default does not extend so far as to allow him to in- troduce any defense. His only right is to resist the amount of the plaintiff's recovery by proving the facts and circumstances, directly (j) Briggs v. Sneghan, 45 Ind. 14, and cases cited; ante, 455. 304 PROCEEDINGS AFTER COMPLAINT FILED. [CHAP. connected with the question of damages, that might have been proved by him under the general denial, in mitigation of damages, if such an answer had been filed. Although to prove a partial payment would affect, directly, the amount of the plaintiff's damages, the defendant could not be allowed to prove payment after default. This would be to allow him to prove a defense that must, under the code, be specially pleaded. k The same must be true of every affirmative defense that must be specially pleaded. This is what is meant, it is presumed, by a substantive defense. Although the defendant may contest the amount, he can not be al- lowed to prove that the plaintiff is not entitled to recover any damages. His default being an admission of the right of the plaintiff to recover nominal damages, there must be judgment in his favor at least to that extent. 1 459. May appeal to the supreme court. It has been shown that a default does not admit the jurisdiction of the court, nor that the complaint states facts sufficient to constitute a cause of action. It follows that a defendant, against whom a default has been taken, may appeal to the supreme court and test these questions in that court. The manner of taking the appeal, and other questions arising under this branch of' the practice, will be more fully considered in the chapter on appeals. 5. WHEN AND HOW DEFAULT SET ASIDE. 460. The statute. The statute provides that the court "shall re- lieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusable neglect."" As this section originally stood, it was within the discretion of the lower court to grant or refuse the relief, but the section, as amended by the act of March 4, 1867, makes it the imperative duty of the court to relieve a party where he brings himself within the statute." 461. Application may be by motion or complaint. The statute does not point out the means by which a party may obtain re- lief in case of default. It must depend to some extent upon the time when the application for relief is made. If made at the same term, it has been held that no complaint or summons is necessary, but the ap- (k) Hubler v. Pullen, 9 Ind. 273; (m) R. S. 1881, 396. BuKer r. Kistler, 13 Ind. 63. (n) Smith v. Noe, 30 Ind. 117; Cav- (1) Ellis v. The State, 2 Ind. 262; enaugh r. The Toledo, Wabash, etc, Runnion v. Crane, 4 Blkf. 466; Bick. R. R. Co, 49 Ind. 149; Phelps v. Os- Prac. 332. good, 34 Ind. 150. XIII.] PROCEEDINGS AFTER COMPLAINT FILED. 305 plication may be by motion. And no notice to the opposite party is necessary. P It would certainly be the better practice, where the application is made at a subsequent term, to require that a complaint should be filed and summons issued as ia other cases. This is the practice in actions for a new trial.' 1 But the statute does not require it, and the supreme court has held it to be unnecessary/ 462. "What motion or complaint must contain. The statute is silent on this point also. We must look to the decided cases to deter- mine what must be shown by a party to entitle him to relief under the statute. It has been held that a party can only obtain relief from a default under the latter clause of section 396. 8 The motion or com- plaint must be supported by affidavit. 1 And must show the following facts : First. That a judgment has been taken against the party in the same court to which the application is made." Second. That he has a valid or meritorious defense to the action. 7 Third. The defense must be set out. w Fourth. The facts showing that the judgment was taken through his mistake, inadvertence, surprise, or excusable neglect. 1 What facts must be alleged to bring a party within the statute can not be definitely stated. The term " excusable neglect" is a very general term, and each case must necessarily depend upon its own facts and circumstances, without any definite rule by which the court can be * governea. All that can be done here is to cite the decisions of the supreme court on the point. Where the facts are substantially the same, the decision may be regarded as good authority, otherwise it can be of but little weight. Each case must to a great extent stand alone. (o) Frazier v. Williams, 18 Ind. 416. Nord v. Marty, 56 Ind. 531 ; Stevens (p) Burnside v. Ennis, 43 Ind. 411; v. Helm, 15 Ind. 183; Nutting v. Lo- Lake v. Jones, 49 Ind. 297; Yancy v. sance, 27 Ind. 37; Blake v. Stewart, 29 Teter, 39 Ind. 305. Ind. 318. (q) K. S. 1881, 424. (w) Goldsberry v. Carter, 28 Ind. (r) Lake v. Jones, 49 Ind. 297; 59; Frost v. Dodge, 15 Ind. 139; Kemp v. Mitchell, 29 Ind. 163. Yancy v. Teter, 39 Ind. 305; The To- (s) Lake v. Jones, 49 Ind. 297; ledo, etc., R. R. Co. v. Gates, 32 Ind. Kemp v. Mitchell, 29 Ind. 103. 238. (t) The Toledo, etc., R. R. Co. 77. (x) Yancy v. Teter, 39 Ind. 305; Gates, 32 Ind. 238; Yancy v. Teter, 39 Hunter v. Francis, 66 Ind. 460; Nord Ind. 305. r. Marty, 56 Ind. 531 : Bristor v. Gal- (u) Kemp v. Mitchell, 29 Ind. 163. vin, 62 Ind. 352; Berry v. Seitz, 15 (v) Yancy v. Teter, 39 Ind. 305; Ind. 69; Vol. S, pp. 186, 187. 20 306 PROCEEDINGS AFTER COMPLAINT FILED. [CHAP. In the cases cited in the foot-note, the facts stated have been held to entitle the parties to relief. y In the following cases the facts have been held insufficient to set aside the default. 2 It should be remembered, in the examination of the cases cited, that all of the decisions prior to Phelps v. Osgood, 34 Ind. 150, holding the facts stated to be insufficient, were based upon the original section un- der which the application of the party was addressed to the discretion of the court, and the supreme court would not interfere unless it ap- peared that there had been a clear abuse of discretion. Since the case of Phelps v. Osgood, the question of a party's right to relief must be decided as any other question presented to the supreme court where the action of the lower court is subject to review. 463. How proof made in applications to set aside default, and what may be controverted. The proceeding authorized by the statute must be regarded as summary in its nature. The ordinary modes of pleading are dispensed with by the construction placed upon the statute by the supreme court. The proof may be made either by affidavits, depositions, or oral proof. 4 The right of the party in whose favor the judgment is rendered to file affidavits is limited, however, to the grounds upon which the relief is sought. He can not be permitted to controvert the allegation that the defendant has a meritorious defense. This would be anticu^ing the matter to be tried if the judgment should be opened up. b mj In the case of Hill v. Crump, it was held that counter affidavits would not be permitted as to the facts constituting a cause for setting aside the default, but this point is clearly settled the other way by the later cases. (y) Ratliff v. Baldwin, 29 Ind. 16; giss v. Fay, 16 Ind. 429; Hazelrig v. Harvey v. Wilson, 44 Ind. 231; Hill Wainwright, 17 Ind. 215; Hays v. The v. Crump, 24 Ind. 291; Alvord v. Bank of the State, 21 Ind. 154; Coop- Gere, 10 Ind. 385; Frazierr. Williams, er t>. Johnson, 26 Ind. 247; Phelps v. 18 Ind. 41(3; Sage v. Matheny, 14 Ind. Osgood, 34 Ind. 150; Barnes v. Smith, 369; Cavenaugh v. The Toledo, etc., 34 Ind. 516; Lake v. Jones, 49 Ind. Tl. Pv. Co., 49 Ind. 149; Clegg v. Fith- 297; eigelmueller v. Seamer, 63 Ind. ian, 32 Ind. 90; Nord v. Marty, 56 488. lad. 531; BrUtor v. Galvin, 62 Ind. (a) Buck v. Havens, 40 Ind. 221; 332; Taylor v. Watkins, 62 Ind. 511; Ratliff v. Baldwin, 29 Ind. 16. Hannah v. The Indiana Central U.K. (b) Hill v. Crump, 24 Ind. 201; Co., 18 Ind. 431. Buck v. Havens, 40 Ind. 221 ; Lake r. (zt Carlisle v. Wilkinson, 12 Ind. Jones, 49 Ind. 297; Bristor v. Galvin, 91; Frost v. Dodge, 15 Ind. 139; Slur- 62 Ind. 352. XUI.] PROCEEDINGS AFTER COMPLAINT FILED. 307 464. Effect of setting aside default taken against one of several defendants. Where judgment is taken against several de- fendants one of the parties may have the default set aside as to him, leaving the judgment to stand against the others, although the judg- ment is joint. It was claimed in the case cited, that when the default was set aside as to Pattison, leaving the judgment to stand against the other defend- ants, no valid judgment could afterward be taken against Pattisou alone. It was held otherwise, the court holding that he could not thus take advantage of the judgment being set aside on his own motion. It was intimated that the better practice would have been to have held the judgment subject to Pattison's defense, and this is the better prac- tice, else we have a plain violation of the well-established rule that two judgments can not be taken on a joint liability. 465. Court can not set aside default on condition that costs are paid. The statute, as I have shown, makes it the impera- tive duty of the court to set aside the default on the proper showing. d It would seem to follow that no conditions can be imposed upon which relief shall be granted, but the court is not bound to grant the relief without terms. 6 In the case cited the court say: " In granting relief under section 99, the court may impose such conditions as are proper. To make them proper, they must be just and reasonable. . . . The failure of the appellant to be present at the time set for the trial resulted in a continuance of the cause, and it would have been reasonable and proper to have adjudged against the appellant all the costs occasioned by his default. But we do not think it was proper for the court to require the actual payment of the costs within a limited time. Such a condition was unreasonable, and in many cases would operate oppressively and pro- duce injustice, where the parties were unable to pay such costs." Although the court say, in express terms, that the court may impose such conditions as are reasonable, the conclusion reached is the other way. While the court may grant relief upon reasonable terms, as, for example, the payment of cost, the terms should not be made a condition, upon the performance of which the default will be set aside. The relief should be granted absolutely, as the statute plainly requires, and judgment rendered against the party for such costs as the court may impose upon him. (c) Pattison v. Norris, 29 Ind. 165. (e) Cavenaugh v. The Toledo, etc., (d) Ante, \ 460. R. R. Co., 49 Ind. 149. 308 PROCEEDINGS AFTER COMPLAINT FILED. [CHAP. 466. Section 396 does not apply to actions for divorce. The section is general in its terms and would seem to be broad enough to cover all cases. But it has been held not to apply to actions for divorced The decisions are placed upon the ground that the section only ap- plies to ' ' civil actions," and a proceeding for divorce is held not to be a civil action, within the meaning of the code. 8 467. The section applies to plaintiffs. The right to relief under this section is not limited to defaults or to defendants. A judg- ment may be taken against a defendant for want of an answer or other failure to take necessary steps in the case, or judgment may be taken against a plaintiff for want of prosecution or other cause. In either case, if the judgment is taken through the excusable neglect of the party, he is entitled to relief. h i 468. Effect of setting aside default. The effect of setting aside a default is to place the party in the same situation in which he would have been if no default had been taken against him, subject, however, to any terms that may have been imposed by the court in granting the relief. This is not true if the default has been taken without the proper service of process. It may well be presumed that where a default has been taken the defendant has been properly served, or he would not be asking to set aside the default. But if a default has been taken upon defective service, or without any service, and the defendant appears and has the default set aside on his own motion, he can not then question the sufficiency of the service. The setting aside of the default brings him before the court and dispenses with the ne- cessity of service. This rule, we have shown in another place, can not apply where the defendant is a non-resident and an appearance has once been entered for him by an unauthorized attorney. 1 In such case, if the appearance is entered by the attorney, without authority, and default is taken by reason of his failure to answer or take some subsequent step in the case, the defendant, being a non-resi- dent, may have the default set aside on the proper showing, and, if admitted to defend, may contest the service. (f) Ewing v. Ewing, 24 Ind. 468; (h) Cavenaugh v. The Toledo, etc., McJunkin v. McJunkin, 3 Ind. 30. K. R. Co., 49 Ind. 149. (g) Ante, 178. (i) Ante, H 227, 228. XIV.] DEMURRER. 309 CHAPTER XIV. DEMURRER.(l) SECTION. 469. The statute. 470. Must be for some one of the stat- utory causes. 471. Form. 472. For one cause does not reach other defects. 473. Neither general nor special de- murrers under the code. CAUSES FOR DEMURRER 1. The court has no jurisdiction over the person of the defendant or the subject-matter. 474. Jurisdiction presumed. 475. In inferior courts, jurisdiction must affirmatively appear. 476. When jurisdiction of the person may be questioned by demurrer. 477. Section 307 of the statute one of jurisdiction. 478. Jurisdiction of the person waived by failure to demur. 2. That the plaintiff has not legal ca- pacity to sue. 479. Applies to legal disabilities. 3. That there is another action pending between the same parties for the same cause. 480. Does not apply to actions pending in another state. 481. Nor to actions subsequently brought. 4. That there is a defect of parties plaintiff or defendant. 482. Construction of the clause. SECTION. 483. What demurrer for defect of par- ties must contain. 5. That the complaint does not state facts sufficient to constitute a cause of action. 484. Not waived by failure to demur. 485. Defects not reached by demurrer for want of sufficient facts. 486. Effect of pointing out particular defects. 6. Misjoinder of causes of action. 487. Must be to whole complaint. 488. What is misjoinder of causes of action. 489. Objection must be raised by de- murrer. 490. Difference between misjoinder of causes of action and misjoinder of parties. WHAT DEFECTS DEMURRER WILL NOT REACH. 491. Defects formerly reached by special demurrer. 492. Surplusage. 493. Uncertainty or indefiniteness. 494. Duplicity. 495. Irrelevant and redundant matter. 496. Sham defense. 497. How pleading shown to be sham. 498. Rule under the revised code. 499. Can general denial be stricken out as sham? 500. Frivolous pleading. 501. Repugnancy. 502. Argumentativeness. (1) For forms of demurrer, see Y or that " the same is not sufficient in law to enable the defendant to sustain his said defense, or to bar the plaintiff's complaint," is insufficient. k A demurrer to several paragraphs of reply, assigning that " neither of said paragraphs constitute a good reply to said answer," is not suffi- cient in form. 1 But a demurrer assigning for cause " that said paragraph does not state facts sufficient," has been held to comply substantially with the statute." 1 An examination of the authorities will show that a substantial com- pliance with the statute is necessary in drawing a demurrer, and that a very little care in following the language of the statute, will avoid going out of court on a mere question of form. The rule that it is sufficient to follow the language of the statute is not true in every case. u 472. For one cause does not reach other defects. It is important to determine, before demurring, within which of the six causes named in the statute the defect in a pleading will fall. A mis- take in this respect will be fatal, for the reason that a demurrer for one cause must be overruled if that cause does not exist, although the pleading may be defective for other reasons. It is not always easy to determine which cause for a demurrer should be assigned, and the decisions are not uniform on this point. This question will be more fully, considered in connection with the separate causes for demurrer. As the party demurring must determine, at his peril, which of the causes exist, if any, it is safer, when there is any doubt, to assign all of the causes that are likely to reach the defect. (g) Gordon v. Swift, 39 Ind. 212. (m) Petty v. The Board of Trustees, (h) Campbell v. Routt, 42 Ind. 410. etc., 70 Ind. 290. (i) Morrison v. Kramer, 58 Ind. 38. (n) Post, 483. ( j) Lane v. The State, 7 Ind. 426. (o) The State v. Stout, 61 Ind. 143 ; (k) Ten brook v. Brown, 17 Ind 410. Cox v. Bird, 65 Ind. 277; Barnett v. (1) Vaughn v. Ferrall, 57 Ind. 182. Leonard, 66 Ind. 422; Leedy v. Nash, 67 Ind. 311. XIV.] DEMURRER. 313 473. Neither general nor special demurrers underthe code. At common law demurrers were general or special. A general de- murrer excepted to the sufficiency of the pleading "in general terms, without showing the nature of the objection ; " a special demurrer added to this a " specification of the particular grounds of exception." A general demurrer went to the substance, and a special demurrer to the form of the pleading. p Strictly speaking neither of these kinds of demurrer exist under the code. It has been expressly held that there can be no demurrer to a pleading for a mere want of form, as in case of a special demurrer at common law. q A demurrer, assigning for cause that the complaint does not " state facts sufficient to constitute a cause of action," is sometimes spoken of as a general demurrer, but the ground of demurrer must be stated here as in other cases ; and in this it differs from the common-law general demurrer. The form of the demurrer is entirely governed by statute, and is essentially different from either a general or special demurrer at common law. But the code demurrer goes to the substance of the pleading, and is, therefore, in legal effect, the same as the common-law general demur- rer, limited, however, to the causes named in the statute. CAUSES FOR DEMURRER. 1. THE COURT HAS NO JURISDICTION OVER THE PERSON OF THE DE- FENDANT OR THE SUBJECT-MATTER. 474. Jurisdiction presumed. It is only where the want of jurisdiction appears on the face of the complaint that a demurrer will lie. r In actions in the circuit court, it being a court of general jurisdic- tion, it is not necessary that the complaint should show, affirmatively, that the court has jurisdiction. If there is nothing in the complaint to show whether the court has or has not jurisdiction the question can not be reached by demurrer, as the jurisdiction will be presumed. 8 (p) Stephen Pleading, 140, 141. Wolf v. The State, 11 Ind. 231; God- (q) Graham r. Martin. 64 Ind. 567; frey v. Godfrey, 17 Ind. 6; Culph v. Igleharfs PI. and Pr. 45, 4; Pome- Phillips, 17 Ind. 209; The Indianapo- roy's Hem., 596. lis, etc., R. R. Co. v. Solomon, 23 Ind. (r) Reiser v. Yandcs, 45 Ind. 174. 534; Loeb v. Mathis, 37 Ind. 306; (s) Brownfield v. Weicht, 9 Ind. Kinnaman v. Kinnarnan, 71 Ind. 417. 394; Ragan v. Haynes, 10 Ind. 348; Ante, 5. 314 DEMURRER. [CHAP. But where the complaint shows, upon its face, that the court has no jurisdiction, the question may be raised by demurrer. 1 Or the action may be dismissed on motion. 11 475. In inferior courts jurisdiction must affirmatively ap- pear. There is a clear distinction between courts of general and those of limited jurisdiction, as to the proper manner of raising the question. The rule that the jurisdiction of a superior court will be presumed does not apply*to inferior courts. Their powers being lim- ited by statute, it must affirmatively appear on the face of the com- plaint that, as to the subject-matter, they are acting within their stat- utory jurisdiction. v Therefore, in this class of cases, where the complaint does not affirmatively show that the court has jurisdiction of the subject-matter, the question is presented by demurrer. 476. When jurisdiction of the person may be questioned by demurrer. It is very seldom that a demurrer can be resorted to as a means of testing the jurisdiction of the court over the person of the defendant, for the reason that the objection will rarely appear on the face of the complaint. The statute authorizing a demurrer must be held to apply only to cases where the court will not have jurisdic- tion even if the defendant has been properly served with process, and not to cases where the court has failed to obtain jurisdiction by reason of the failure to get service. w For example, in an action required by the statute to be commenced in the county where the defendant resides, if the complaint shows upon its face that he resides in another county the court would, within the meaning of the statute, have no jurisdiction of the person, and a de- murrer would be the proper remedy. 1 If it does not appear on the face of the complaint, a plea in abate- ment is the proper remedy. y If the defendant resided in the county, but was not served with (t) Parker v. McAlister, 14 Ind. 12; O. & M. R. R. Co. v. Shultz, 31 Ind. Loeb v. Mathis, 37 Ind. 306; Stanford 150; The Board of Comm'rs, etc., v. v. Stanford, 42 Ind. 485; Newell v. Markle, 46 Ind. 96; ante, 5. Gatling, 7 Ind. 147; Keiser v. Yandes, (w) Bliss' Code PI., 405. 45 Ind. 174. (x) Nones v. The Hope, etc., Ins, (u) Kinnaman v. Kinnaman, 71 Ind. Co., 8 Barb. 541 ; The State v. Ennis- 417. 74 Ind. 17. (v) Cobb v. The State, 27 Ind. 133; (y) Ludwick v. Beckamire, 15 Ind. McCarty v. The State, 16 Ind. 310; 198; The State v. Ennis, 74 Ind. 17. Justice v. The State, 17 Ind. 56; The XIV.] DEMURRER. 315 process, the court would not have obtained jurisdiction of the person, but the defendant being within the jurisdiction, an appearance and the filing of a demurrer would, even if the facts appeared on the face of the complaint, be a waiver of the want of jurisdiction. 2 In this class of cases the question must be reached by motion under a special appearance, and not by demurrer. 8 477. Section 307 of the statute one of jurisdiction. The decisions of the supreme court as to the effect of section 307 of the statute 1 " have not been uniform, some of the cases holding that the sec- tion was one fixing the venue only, c while other and later cases have held that the provision fixing the place where actions should be brought limited the jurisdiction of the courts of the state. d It follows, from these decisions, that the question whether the action is brought in the proper county may, where the facts appear on the face of the complaint, be raised by demurrer. It was also true, as the code then stood, that a failure to raise the question by demurrer or answer did not waive the objection to the jurisdiction, on the ground of the action being commenced in the wrong county, 6 but the revised statute changes the law in this respect. It was expressly provided by section 54 of the code, that the objection to the jurisdiction of the court over the subject-matter should not be waived by a failure to de- mur or answer. It resulted from this section and section 28, as construed by the supreme court, that the objection that the action was commenced in the wrong county might be raised for the first time in the supreme court. But by section 343, as revised, it is provided that "the objec- tion that the action was brought in the wrong county, if not taken by answer or demurrer, shall be deemed to have been waived.* 478. Jurisdiction of the person -waived by failure to de- mur. As has been said, the question of the jurisdiction of the person is not likely to be presented on the face of the complaint so as to be reached by demurrer, but where it is so presented, advantage (z) Ante, 222; Hadley v. Gutridge, Huff, 19 Ind. 444; Brownfield v. 58 Ind. 302. Weicht, 9 Ind. 394; Pritchard v. (a) Ante, 223; The Aurora Ins. Campbell, 5 Ind. 494; Parker v. Me- Co. v. Johnson, 46 Ind. 315. Alister, 14 Ind. 12; Vail v. Jones, 31 (b) R. S. 1881, 307. Ind. 467 ; Stanford v. Stanford, 42 Ind. (c) Indianapolis, etc., R. R. Co. v. 485; ante, 390. Solomon, 23 Ind. 534; ante, 390. (e) 2 R. S. 1876, p. 59, 54. (d) Loeb v. Mathis, 37 Ind. 306; (f) R. S. 1881, 343. Tho New Albany, etc., R. R. Co. v. 316 DEMURRER. [CHAP. must be taken of it by demurrer, or it will be waived. If the objec- tion appears on the face of the complaint, it can not be reached by answer, as it is only where the objection does not so appear that such answer is authorized. 8 Thus the right to answer is cut off by failure to demur, and a fail- ure to raise the question either by demurrer or answer is a waiver of the objection. 11 2. THAT THE PLAINTIFF HAS NOT LEGAL CAPACITY TO SUE. 479. Applies to legal disabilities. The right given by statute to demur for this cause, is one rarely resorted to in practice. It has been held to apply to cases where some legal disability exists on the part of the plaintiif; such as, unsoundness of mind or infancy, and not to a case where the action is brought in the name of a wrong party i 1 The same objection may be raised by answer where it does not ap- pear on the face of the complaint ; j but where the disability is appar- ent on the face of the complaint, it must be presented by demurrer, or it will be waived. It can not, in such case, be raised by answer. k In those states where the plaintiff suing in a fiduciary capacity, or as a corporation, must show the right to maintain the action in such capacity, a demurrer will lie if the right to sue does not affirmatively appear. 1 But this, as has been shown, is not the law in Indiana. 111 The objection that an executor or corporation has no capacity to sue as such must be raised by special answer. 11 The question may arise whether the defect can be reached under this cause of demurrer, where it is apparent, upon the face of the com- plaint, that the corporation is not properly organized, or that the party suing as such is not an executor. If this cause of demurrer applies solely to such legal disabilities as are named in the statute, the de- murrer could not be sustained on the ground of want of capacity to sue. (g) R. S. 1881, ? 343; Newell v. Gat- cultural "Works, 52 Ind. 296; Nave v. ling, 7 Ind. 147; Keiser v. Yandes, 45 Hadley, 74 Ind. K5. Ind. 174; post, 563. (j) Hollingsworth v. The State, 8 (b) Ludwick v. Beekamire, 15 Ind. Ind. 257. 198. (k) Ante, ? 368; R. S. 1881, 343. (i) Pomeroy's Rem., 208; Debolt (1) Bliss' Code PL, 407, 408 v. Carter, 31 Ind. 355 ; Dale v. Thomas, (m) Ante, 389 et seq. 67 Ind. 570; Rogers v. Lafayette Agri- (n) Post, 582. XIV.] DEMURRER. 317 It is held in other states that a demurrer for the failure to state facts sufficient would not reach the defect. But our statute, as it is construed by the supreme court, must alter this rule. As it applies solely to legal disabilities, the fact that the complaint shows affirmatively that the corporation suing is not legally organized would not authorize a demurrer for want of capacity to sue. p It is equally well settled that such a defect can not be reached by a demurrer for want of sufficient facts, which, it has been held, admits the existence of the corpora tion. q It follows that, notwithstanding it appears affirmatively in the com- plaint that the party has no right to maintain the action, it must still be presented by answer and not by demurrer. There is a late case, however, that can not be reconciled with this otherwise uniform line of decisions, holding that want of capacity applies to legal disabilities alone. 1 " The action was brought by the plaintiffs in their firm name of L. J. Dunning & Son. There was a demurrer to the complaint on the grounds : 1. That the plaintiffs had not legal capacity to sue. 2. The complaint did not state facts sufficient to constitute a good cause of action. The supreme court say : . " We construe the first ground of objection raised by the demurrer, viz. , that the appellees ' had not legal capacity to sue' to mean, in legal contemplation, that they were not authorized by law to prosecute their action in the manner and form m which they did ; that is, their firm or partnership name simply." After quoting authorities to the effect that partners can not sue in their firm names, the court say further : " The rule thus laid down has ever since, so far as we are advised, been recognized as the correct one in the class of cases to which it refers. Our present code of civil pro- cedure seems to have made no change in that rule. We think it may, therefore, be safely assumed as the settled law in our state that an un- incorporated company can not sue in the name of their firm, but must proceed in the individual names of their members. From the conclu- sions at which we have arrived, we are constrained to decide that the appellees had not legal capacity to sue in the manner and in the form in which tliey proceeded, and that the court erred in overruling the demur- (o) Bliss' Code PL, \ 408, and cases (q) Wiles v. The Trustees of Philippi cited. Church, 63 Ind. 206. (p) Nolte v. Libbert, 34 Ind. 163; (r) Pollock v. Dunning, 54 Ind. 115. Kellev v. Love. 35 Ind. 106. 318 DEMURRER. [CHAP. rer to the complaint ; also that the court erred in overruling the motion in arrest of judgment." This case, so far as it holds that the defect in the complaint could be reached by a demurrer for want of capacity to sue, is in direct con- flict with a long line of authorities, both before and after the opinion was rendered. In a later case, the court lays down the same rule : "A demurrer to a complaint for the second statutory cause, ' that the plaintiff has- not legal capacity to sue/ has reference only to some legal disability of the plaintiff, such as infancy, idiocy, or coverture, and not to the fact that the complaint on its face fails to show a right of action in the plaintiff." 8 It can not be maintained that because a party brings his action by a wrong name, or omits his Christian name in his complaint, that he has not legal capacity to sue. The decision that the action was not properly brought is well sustained by authority, but the ground upon which it was placed is clearly wrong. 3. THAT THERE IS ANOTHER ACTION PENDING BETWEEN THE SAME PARTIES FOR THE SAME CAUSE. 480. Does not apply to actions pending in another state. This cause for demurrer rarely presents itself in practice. It must, of course, appear on the face of the complaint to be cause for demur- rer, and this very seldom occurs. The statute does not limit the cause to actions pending in this state, but this is the construction given it by the supreme court.* Therefore, it is not sufficient cause for demurrer that the complaint shows another action pending in another state. u 481. Nor to actions subsequently brought. The fact that an action has been subsequently instituted between the same parties, for the same cause, is not ground of demurrer. The demurrer is the same in effect as a plea in abatement, and governed by the same rules. It is well settled by authority that a subsequent action is not sufficient to abate the one pending, and the bringing of the second action is no cause for demurrer.' The question whether the action must be pending when the demur- (s) Dale v. Thomas, 67 Ind. 570. v. The Bank of the State of Indiana, (t) De Armond v. Bonn, 12 Ind. 20 Ind. 528. 607; Lee v. Hefley, 21 Ind. 98; Busk. (v) Sherwood v. Hammond, 4 Blkf. Prac. 167. 504; Lee v. Hefley, '21 Ind. 98; Busk. (u) Bliss' Code PI., 410; Bradley Prac. 167. XIV.] DEMURRER. 31 > rer is filed, is not so well settled. At common law the rule was, that it was not necessary that a plea in abatement should show that the ac- tion pleaded was still pending at the time the answer was filed. It was sufficient to show, to abate the writ, that it was pending at the time the writ was issued in the present case, and that the plaintiff could not avoid the plea by dismissing the former action. w This was the rule prior to the enactment of the present statute. The language of the statute would seem to relate to the time the demurrer or plea is filed, but the supreme court has held that it does not change the common-law rule. 1 The court say: " An inference might be drawn from the language employed that it was the intention-of the law-makers to permit such a defense only in cases where the suit was pending at the time of plead- ing. But it is by no means clear from the reading that such construc- tion would be right, and as it would be in violation of the principles of pleading which formerly maintained in that respect, we are not in- clined to adopt such construction, believing that the language employed would have more directly expressed the purpose if the intention had existed to change the rule in that regard." It follows, from this construction of the statute, that the plaintiff must have had the right to maintain his action at the time it was brought, and if the complaint shows upon its face that there was then another action pending in this state between the same parties and for the same cause, a demurrer will lie, and the fact that the other cause has since been dismissed can not avoid the effect of the demurrer. 7 If the cause was pending at the time the demurrer or answer in abate- ment was filed, its subsequent dismissal would not avoid the demurrer or answer. 2 4. THAT THERE IS A DEFECT* OF PARTIES PLAINTIFF OR DEFEND- ANT. 482. Construction of the clause. This cause for demurrer has given rise to much difference of judicial opinion, and the decisions are conflicting. It has sometimes been a question of much difficulty to determine whether the demurrer should, in the given case, be for a de- fect of parties or for want of sufficient facts. The following proposi- tions may be regarded as settled by the decided cases : (w) Chitty's PI. 487a, and note; (y) Bliss' Code PI., 410. Saunders' PI. and Ev., 2d Am. ed., p. (z) Frogg's Ex'rs v. Long's Adm'r, 20; Lee . Hefley, 21 Ind. 98. 28 Am. Dec. 69 ; s. c., 3 Dana, 357. (x) Lee u. Hefley, 21 Ind. 98. 320 DEMURRER. [CHAP. First. A defect of parties means too few and not too many parties.' Second. The defect of too many plaintiffs must be reached by demur- rer for want of sufficient facts. b In some of the states misjoinder of parties is made a cause of de- murrer. In those states this cause must be specifically set forth as a cause for demurrer for want of sufficient facts, but we have no such cause for demurrer. Third. Where there are too many defendants the demurrer should be for want of sufficient facts by the defendants against whom no cause of action is stated.* 1 Fourth. As a misjoinder of parties is not a cause of demurrer, defend- ants against whom a cause of action is stated can not demur on any ground, because other parties are improperly joined as defendants. 6 In* this class of cases, where there are several defendants against whom no cause of action is stated, they may join in a demurrer or they may demur separately. But the better practice is to demur separately. 483. What demurrer for defect of parties must contain. The demurrer for this cause is in the nature of a plea in abatement. It is not sufficient to demur in the language of the statute. The de- murrer must not only point out the defect complained of, but the names of the parties that should be joined must be given/ Where the names of the omitted parties appear on the face of the complaint, as well as that they are necessary parties, their names need not be set out in the demurrer. 8 (a) Bennett v. Preston, 17 Ind. 291 ; per v. Vanhorn, 15 Ind. 15-3; Hill v. Eldridgev. Bell, 12 How. (N. Y.) 549; Marsh, 46 Ind. 218; Betson . v. The Draper v. Vanhorn, 15 Ind. 155; Hill State, 47 Ind. 54; Buskirk's Prac., p. v. Marsh, 46 Ind. 218; Berkshire v. 169. Shultz. 25 Ind. 523; Bliss' Code PI., (e) Bennett v. Preston, 17 Ind. 291; 4H; Buskirk's Prac., p. 169; Pome- Berkshire v. Shultz, 25 Ind. 523, 527; roy's Rem., 206; Hill v. Shatter, 73 Hill v. Marsh, 46 Ind. 218: Makepiece Ind. 459. v. Davis. 27 Ind. 352; Goff v. -May, 38 (b) Berkshire v. Shultz, 25 Ind. 523; Ind. 267; Buskirk's Prac.. p. 170. Davenport v. McCole, 28 Ind. 495; (f) Fink v. Maples, 15 Ind. 297; Goodnight v. Goar, 30 Ind. 418; De- Gaines v. Walker, 16 Ind. 361; Mus- bolt v. Carter, 31 Ind. 355; Fatman v. selman v. Kent, 33 Ind. 452; Kelley v. Leet, 41 Ind. 133; Neal v. The State, Love, 35 Ind. 106; Vansickle v. Krdel- 49 Ind. 51; Musselman v. Kent, 33 mier, 36 Ind. 262; Marks v. The In- Ind. 452; Lippard v. Edwards, 39 Ind. dianapolis, etc, R. R. Co., 38 Ind. 440; 165; Mann v. Marsh, 35 Barb. 68. Nicholson v. The Louisville, etc.. R. R. (c) Bliss' Code PI., ? 411. Co., 55 Ind. 504; Cox v. Bird. 65 Ind (d) Bennett v. Preston, 17 Ind. 291; 277; Bliss' Code PI., 41 f J; Buskirk's Berkshire v. Shultz, 25 Ind. 523; Dra- Prac., p. 167. (g) Allen v. Jerauld, 31 Ind 372. XIV.] DEMURRER. 321 It must not be understood that a demurrer for this cause can be re- sorted to where the defect does not appear on the face of the complaint. But the fact that there is a defect of parties may appear without dis- closing the name of the party not joined. In such case the demurrer must, as in an answer in abatement, disclose the name. If the defect does not appear on the face of the complaint, it must be reached by answer. The defect must be reached by demurrer for defect of parties, where it appears on the face of the complaint, and can be reached in no other way. h 5. THAT THE COMPLAINT DOES NOT STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION. 484. Not waived by failure to demur. A demurrer for this cause is usually termed a general demurrer. The defect in the plead- ing to which it is addressed need not be specifically pointed out. It is sufficient to use the language of the statute.' The language of the statute is very comprehensive. Its very com- prehensiveness has given rise to a conflict, in the decided cases, as to the construction it should receive. While this is regarded as the most important cause fbr demurrer, as it is certainly the one most frequently resorted to in practice, the failure to demur, under this subdivision, is less serious than for any other cause except for want of jurisdiction, as the failure to demur is not a waiver of any objection that could be thus raised to the complainU 485. Defects not reached by demurrer for want of suffi- cient facts. In one sense this cause for demurrer would seem to cover every conceivable objection that could be urged to a pleading. Whatever the cause for demurrer, the defect must be apparent on the face of the pleading, and where the pleading discloses such a defect as would render it bad in law it does not, as pleaded, contain facts suffi- cient to constitute a cause of action or defense. But this broad mean- ing can not be given to this clause of the statute without destroying the effect of the other causes for demurrer. The whole section must be taken together; and, when thus consid- ered, it may be laid down as a safe rule that no defect can be reaphed by this cause for demurrer that falls within either of the other subdi- visions of the statute. Thus, in an action to recover real estate in the common-pleas court, before that court was abolished, it would appear that (h) Pomeroy's Rem., 207. (j) Post, 520. N (i) Ante, 471. x 21 322 DEMURRER. [CHAP. the court had no jurisdiction, and therefore the facts stated would show that the plaintiff ought not to recover ; but the want of jurisdiction is made a special cause for demurrer, and the demurrer must be for that cause. It is important to determine, in the first instance, whether the defect falls within one or the other of the special causes named in the statute. If the demurrer is for want of facts, when it should be for one of the other causes, the party demurring not only loses the benefit of his demurrer, but waives his right to object to the pleading at any later stage of the case, except the objection should be for want of ju- risdiction. For example, if the demurrer should be for want of suffi- cient facts, when the only objection is a defect of parties, the defect is not reached, and the real objection to the complaint is waived by a % failure to demur for that cause. k Thus, admitting the fact that such a defect exists as would subject the pleading to demurrer, it is as fatal to demur for the wrong cause as it would be if no demurrer was filed. What defects can be reached by demurrer will be considered farther on. It may be safely said that a de- murrer, for want of sufficient facts, will only lie where the pleading fails to aver some facts necessary to entitle the party to recover. The rule is thus stated by Mr. Bliss, in his work on Code Pleading : " The demurrer upon this ground is still commonly called a general demurrer, and should be interposed to a pleading, or to any of its counts or state- ments, when it shows that no legal wrong has been done, or that the law will not redress it, or that the party has mistaken his remedy, or when there has been an omission of some material averment necessary either to establish the wrong, or to so connect the parties with it, as to entitle the plaintiff to redress." 1 This statement of the rule may be regarded as open to criticism. It could hardly be a cause for demurrer that the plaintiff has " mistaken his remedy." It has been shown that if the complaint states a cause of action, the plaintiff is entitled to such remedy as the facts will warrant, no matter whether it is the remedy he asks for or not. To say that the plaintiff has mistaken his remedy is to admit that he is entitled to some remedy under the facts pleaded. If this be true, no cause for demurrer exists. The material difference between a demurrer for this cause and the others provided for in the statute is that the demurrer for want of facts goes to the substance of the cause (k) R. S. 1881, ? 343; Little v. John- v. Leonard, 66 Ind. 422; Wright v. ston, 26 Ini. 170; Collins v. Nave, 9 Jordan, 71 Ind. 1. Ind. 209; Mobley v. Slonaker, 48 Ind. (1) Bliss' Code PI., 413. 256; Shore v. Taylor, 46 Ind. 345; (m) Ante, 342. Thomas v. Wood, 61 Ind. 132; Barnett XIV.] DEMURRER. 323 of action, while the others are in the nature of pleas in abatement. In the former, the direct question is presented, whether, admitting that the court has jurisdiction of the subject-matter and the parties, that the necessary parties are all before the court, and the matters alleged are in form well pleaded, the plaintiff is entitled to recover. The other causes of demurrer do not reach the question of the cause of action, but say : Admitting a cause of action to be stated, the court has no jurisdiction to give relief, or necessary parties are not joined, or the plaintiff has not legal capacity to sue, or there is another cause of action pending, or several causes of action are improperly joined. It will be seen at once that these last causes do not reach the substance of the complaint. They are just as applicable where a cause of action is stated as where it is not, and while a demurrer for any of these causes does not waive the failure to state facts sufficient, because the statute provides that such objection can not be waived, they do not raise or present the question. For the purposes of a demurrer for any of the other causes, it is in effect admitted that a cause of action is stated, while for the purposes of a demurrer for the want of facts, it is admit- ted that none of the other causes for demurrer exist. It can not be said that a demurrer for want of sufficient facts will lie where the facts alleged do not " connect the parties with the wrong, so as to entitle the plaintiff to redress." This would, undoubtedly, be true as to the defendants ; but, under the practice in this state, it is not necessary to so connect the plaintiff in all cases by the averments of the complaint. For example, a party suing as executor need not connect himself with the cause of action by any averment in the com- plaint. This is true also in an action on a promissory note by a holder, who received it without indorsement. Without making the payee a party, he is not so connected with the cause of action as to entitle him to recover ; but the question can not be reached by demurrer for want of sufficient facts. It must be by demurrer, on the ground of a defect of parties." But a demurrer fur want of facts reaches the objection that the right of action is not in the plaintiff e. g., where he sues as guardian and the action should be in the name of the ward.(l) There is one apparent exception to the rule that a demurrer for want of sufficient facts can not be sustained where the complaint contains a cause of action. It is where several plaintiffs sue, and the complaint only discloses a cause of action as to a part of them. In this class of cases the -ule is well settled that, unless the complaint contains facts sufficient to constitute a cause of action in favor of all of the plaintiffs, it is bad r.s to all, and the defect can only be reached by a demurrer for want of sufficient facts. (n) Shane v. Lowry, 48 Ind. 205; "Wilson v. Galey, 103 Ind. 257. Strong u. Downing, 34 Ind. 300. (o) Ante, 354; Berkshire v. Shultz, (1) Pence v. Anghe, 101 Ind. 317; 25 Ind. 523; Davenport v. McCole, 28 324 DEMURRER. [CHAP. But this it will be seen, by an examination of the authorities, is placed upon the ground that, as the parties sue jointly, they must show a cause of action in all who sue, and if the complaint fails to disclose a cause of action as to any one of the plaintiffs, it does not state facts sufficient to constitute a cause of action. Although the rule is now well settled by authority, its correctness may well be doubted. It is not in harmony with the liberal provisions of the code authorizing judgment to be rendered for the parties who establish a cause of action and against others. p 486. Effect of pointing out particular defects. Under the fifth cause for demurrer it is sufficient to demur, generally, in the lan- guage of the statute, that the complaint does not state facts sufficient to constitute a cause of action, without pointing out in what respect the complaint is defective. But it has been held that, where the de- murrer points out specifically the objection to the pleading, and the objection is not well taken for that cause, the party will be held to the causes specified and the demurrer overruled, although the complaint may fail to state other facts necessary to constitute a cause of action. q This can only be true, however, where the party relies upon his de- murrer in the supreme court. As the failure to demur does not waive this cause, he may still assign as error that the complaint does not state facts sufficient to constitute a cause of action, and the cause must be reversed, notwithstanding the demurrer does not reach the defect. 6. MISJOINDER OF CAUSES OF ACTION. 487. Must be to the whole complaint. A demurrer for this cause reaches the whole complaint, and can not be applied to separate paragraphs/ 488. "What is misjoinder of causes of action. This cause for demurrer must be distinguished from duplicity. The im- proper joinder of two causes of action, in the same paragraph, that might properly be joined in separate paragraphs, is not cause for demurrer. 8 The statute* applies to the joinder, either in the same or different Ind. 495; Goodnight v. GOAT, 30 Ind. (p) K. S. 1881, 568; ante, 101,102. 418; Debolt v. Carter, 31 Ind. 355; (q) Sluss v. Shrewsberry, 18 Ind. 79. Lipperdi?. Edwards, 39 Ind. 165; Neal (r) Fletcher v. Piatt, 7 Blkf. 522; v. The State, 49 Ind. 51; Pomeroy's Bougher v. Scoby, 16 Ind. 151. Rem., 213. (s) Post, 494. XIV.] DEMURRER. 325 paragraphs of causes of action belonging to different classes, in viola- tion of section 278 of the statute.' 489. Objection must be raised by demurrer. There is but one mode of raising the question of misjoinder of causes of action. It can not be done by answer. As to other causes of demurrer, it is provided by statute that where the objection does not appear on the face of the complaint it may be taken by answer ; but the statute ex- pressly excepts the misjoinder of causes of action." Therefore, the ob- jection must be taken by demurrer, or it is waived.' 490. Difference between misjoinder of causes of action and misjoinder of parties. The difference between the misjoinder of causes of action and misjoinder of parties is not always kept in mind. The importance of distinguishing them is apparent, as one is cause for demurrer and the other is not. Both defects may exist in the same pleading. Two or more causes of action, belonging to differ- ent classes, may be stated against all of the defendants, which would be a misjoinder of causes. There may be two causes, belonging to dif- ferent classes : one cause against part of the defendants, and another against the others. This would present the two defects, misjoinder of causes and misjoinder of parties. Again, there may be parties joined, against whom no cause of action is shown. This would be simply a misjoinder of parties. w It has been held that where the complaint discloses two causes of action, growing out of this same injury, one in favor of the plain tin* individually and the other as an administrator, there is a misjoinder of causes of action, although both causes of action are against the de- fendants sued. 1 WHAT DEFECTS DEMURRER WILL NOT REACH. 491. Defects formerly reached by special demurrer. We have seen that we have no special demurrer in our practice. y Defects not included in the six causes laid down in the statute, and that would, under the common law, have been reached by special de- (t) Buskirk's Prac., p. 169; Lane v. (v) Burrows v. Holderman, 31 Ind. The State, 27 Ind. 108; Fritz v. Fritz, 412; Buskirk's Prac., p. 170. 23 Ind. 388; Makepiece v. Davis, 27 (w) Goff v. May, 38 Ind. 267. Ind. 352; Burrows v. Holderman, 31 (x) The Cincinnati, etc., R. R. Co. v. Ind. 412 ; Rutherford v. Moore, 24 Chester, 57 Ind. 297. Ind. 311. (v) Ante, ? 473. [u] K. S. 1881, 313. 326 DEMURRER. [CHAP. murrer, are not grounds of demurrer under the statute, but must be the subject of a motion. 1 492. Surplusage. Surplusage falls within the rule, and can not be reached by demurrer. 8 What constitutes surplusage has been considered in another place. b The practice of resorting to motions to strike out surplusage and re- dundant matter has been carried to such an extent in this state as to have become a positive evil, that results in much delay, thereby increasing the labors of the courts and attorneys. As a rule, nothing is gained by such a motion but delay* If the matter is mere surplusage, it adds nothing to the legal effect of the pleading. It is very rarely necessary or even advisable to move to strike out matter that is mere surplusage. 493. Uncertainty or indefiniteness. Uncertainty in a plead- ing 1 differs materially from surplusage in its effect. The one adds un- necessary matter to a pleading that is good without it. Uncertainty is the absence of matter necessary to show clearly the cause of action. The uncertainty may be so great that the court can not determine what is the cause of action, or that one is stated, in which case a de- murrer for want of sufficient facts is the proper remedy.* 1 But where a cause of action is stated, an objection that the pleading is uncertain or indefinite must be reached by a motion to require the pleader to make it more specific. 6 (z) Locke v. The Merchants' Na- nati, etc., R. R. Co. v. Chester, 57 Ind. tional Bank, 66 Ind. 353; Wiles v. 297; The City of Evansville v. Thayer, Lambert, 66 Ind. 494. 59 Ind. 324 ; Reynolds v. The State, 61 (a) The City of Evansville v. Thay- Ind. 392; Boyce v. Brad}-, 61 Ind. 432; er, 59 Ind. 324; King v. The Enter- Inglis v. The State, 61 Ind. 212; Sib- prise Ins. Co., 45 Ind. 43. bitt v. Stryker, 62 Ind. 41 ; Hershman (b) Ante, 372. v. Hershman, 63 Ind. 451 ; The City of (c) Owen v. Phillips, 73 Ind. 284. Goshen v. Kern, 63 Ind. 468; Fly v. (d) R. S. 1881, 376; Snowden v. Brooks, 64 Ind. 50; Hampson v. Fall, "Wilas, 19 Ind. 10; Lewis v. Edwards, 64 Ind. 382; Jameson v. The Board of 44 Ind. 333. Comm'rs of Bartholomew County, 64 (e) R. S. 1881, 376; Snowden v. Ind. 524; Proctor v. Cole, 66 Ind 576; Wilas, 19 Ind. 10 ; Fultz v. Wycoff, 25 Schoonover v. Reed, 66 Ind. 598; Dean Ind. 321; Hazzard v. Ueacock, 39 Ind. v. Miller, 66 Ind. 440; The Marion, 172; The Ohio, etc., R. R. Co. v. Me- etc., Gravel Road Co. v. Kessinger, 66 Clure, 47 Ind. 317; Goodwin v. Walls, Ind. 549; Earle v. Peterson, 67 Ind. 52 Ind. 268; Brown v. The College 503; Dale v. Thomas, 67 Ind. 570; Da- Corner, etc., Gravel Road Co., 56 Ind. vis v. The State, 68 Ind 104; Terrell 110; Holcraft v. Mellott, 57 Ind. 539; v. The State, 68 Ind. 155; Hyatt v. The Brookville, etc., Turnpike Co. v. Mattingly, 68 Ind. 271 ; Gabe v. Mc- Pumphrey, 59 Ind. 78; The Cincin- Ginnis, 68 Ind. 538; Milroy v. Quinn, XIV.] DEMURRER. 327 The numerous authorities cited would seem to be sufficient to settle the question. But the difficulty has not been to determine what the rule is so much as to determine what degree of uncertainty is sufficient to render the pleading bad on demurrer. For this reason the authori- ties have been gathered together in the foot-note, so that the inquiring members of the profession may determine, from illustration or exam- ple, what can not be the subject of any definite rule. If a cause of action is stated a demurrer will not reach the defect, no matter how uncertain or indefinite the allegations may be. If a cause of action is not stated, a demurrer is the proper remedy. The rule can not be more definitely stated. +. 494. Duplicity. The statute requires that, where several causes of action are contained in the same complaint, they shall be set out in separate paragraphs and numbered/ The violation of this provision is a very common vice in pleading, but it is not one that can be reached by demurrer. The proper remedy is by a motion to require the plaintiff to separate and number his sev- eral causes of action. The rule applies equally where several defenses are set up in the same paragraph of answer or reply. % Some of the authorities hold that the proper remedy for duplicity is a motion to strike out. But duplicity can only exist where there are two causes of action stated. b Neither can be regarded as surplusage or irrelevant matter. The only violation of the rules of pleading is in joining the two causes of action or defenses in the same paragraph. The proper remedy is to separate and number the causes of action, as the statute requires. This should be done by a motion to require that they be separated and numbered, and not by motion to strike out. If a counterclaim is joined with an answer, the proper remedy is to move to strike out.' 495. Irrelevant and redundant matter. The objection of ir- 69Ind. 406; Lee v. Davis, 70 Ind. 464; (g) The State t>. Newlin, 69 Ind. Walterhouse v. Garrard, 70 Ind. 400; 108; Johnson v. The Crawfordsville, The Pittsburgh, etc., R. R. Co. v. Hunt, etc., R. R. Co., 11 Ind. 280; Booher v. 71 Ind. 229; Bliss' Code PL, 425; Goldsborough, 44 Ind. 490; Rielay v. Buskirk's Prac. 185; Shappendocia v. Whitcber, 18 Ind. 458; Denman v. Spencer, 73 Ind. 128; Knox v. Wible, McMahin, 37 Ind. 241. 73 Ind. 233; The O. & M. R. R. Co. v. (b) Booher v. Goldsborough, 44 Ind. Collarn, 73 Ind. 261; The City of 490; Thompson v. Oskamp, 19 Ind. Huntington v. Mendenhall, 73 Ind 460. 399; Swinney v. Nave, 22 Ind. 178; (f) R. S. 1881, 338. ante, 375. (i) Bliss' Code PL, 424. 328 DEMURRER. [CHAP. relevancy or redundancy may apply to a part or all of a paragraph, and occurs most frequently in the answer or reply. Where the irrele- vant or redundant matter is but a part of a paragraph, and a cause of action is stated, the defect must be reached by a motion to strike out. If the irrelevant matter consists of aii entire paragraph, the remedy may be by demurrer or motion. In this class of cases the practice of moving to strike out a paragraph is quite common. It is a practice that should not be encouraged. It frequently occurs that a paragraph of pleading is bad on demurrer that will withstand a motion to strike out on the ground of irrelevancy. > In the case of Struver v. The Ocean Insurance Company, decided under the New Yorlscode, which is the same in effect as ours, the court say : "A sham answer is one that is false in fact ; a pleading is irrele- vant which has no substantial relation to the controversy between the parties to the action ; and a frivolous answer presents no defense to the action. An answer, however, that is so framed that it does not set up a valid defense, but which states facts that may, by being properly averred, constitute a defense, will not be struck out as sham, irrele- vant or frivolous, but it may be demurred to." Our own supreme court quotes the language of the Xew York case, with approval in Clark v. The Jeffersonville, etc., R. R. Co., and say: " In our opinion, the answer under examination can not be regarded either as sham, irrelevant or frivolous. There is nothing showing that it is false in fact. It certainly has a substantial relation to the con- troversy between the parties to the action. Nor can we say that it presents no defense to the action. It may not be so framed as to pre- sent a valid defense, but it does state facts which tend to show that they would amount to a valid defense if properly averred. When a demurrer is sustained to a pleading the party has a right to amend, but when a pleading is stricken out it can not be amended, for it is out of the record. The party, then, must either reserve the question by a bill of exceptions and seek relief in this court, or obtain the leave of the court to file another pleading. For this reason motions to strike out are not to be encouraged, unless it is manifest to the court that it would be to the prejudice of the party that has to answer or reply to suffer the objectionable matter to remain." In the case of Port v. Williams, the court say : "A motion to strike out does not perform the office of a demurrer, either under the old or new practice. "Whether it was a sufficient defense to bar the action was wholly im- (j) Port v. Williams, 6 Ind. 219; Co., 44 Ind. 248, 262; Struver v. The Clark v. The Jeffersonville, etc., R. II. Ocean Ins. Co., 9 Abbott Pr. 23. XIV.] DEMURRER. 329 material. It was at least such pertinent matter as the court ought not to strike out on motion. It was not so irrelevant as to warrant that ; it was not a sham defense. We are, therefore, of the opinion that the court erred in sustaining the motion to strike out." k It must be clear, from the authorities cited, that where a paragraph is so far irrelevant as to be subject to a motion to strike out on that ground, it will be equally subject to demurrer for want of sufficient .'acts. And a demurrer will be sustained in some cases where the mo- tion must be overruled. Therefore, the correct as well as the safe practice is to demur. 496. Sham defense. A sham defense differs materially from ir- relevant matter. Irrelevant matter may be true in fact, but it has no substantial relation to the controversy between the parties. A sham defense is one that is "good in form but lalse in fact." 1 An answer containing a sham defense is not subject to demurrer. The only objection to it must be that it is false, and a demurrer would, for the purposes of^the demurrer, admit the facts alleged to be true. The only remedy is by a motion to strike out. m 497. How pleading shown to be sham. The question as to the proper manner of showing a pleading to be sham has been one of much difficulty. It was held in an early case, before the enactment of the code of 1852, that where a plea appeared, from its face and the plaintiff's affidavit, to be false, and to have been filed merely for delay, it might be rejected on motion." But so far as this case held that the plaintiffs affidavit could be taken into account in determining whether an answer was sham or not, it was overruled in a later case, though not referred to in the opinion. It was also held that an answer might be stricken out as sham where the defendant, in answer to interrogatories, admitted its falsity. p But this case has been overruled by later cases, holding that the (k) Stewart o. Miller, 6 How. Pr. (m) R. S. 1881, \ 382; Smith v. 312; Kurtz v. -McGuire, 5 Duer, 660; Webb, 5 lilkf. 287; Walpole v. Cooper, In<,'orsoll v. Ingersoll, 1 Code R. 102; 7 Blkf. 100; Beeson v. McConnaha, 12 .vverill v.Taylor, 5 How. Pr. 476; Al- Ind. 420; Buskirk's Prac. 189; Bliss' lYed v. Watkins, Code R. (N. S.) 343; Code PL, 422. Maloney v. Downr, 15 How. Pr. 261. (n) Smith v. Webb. 5 Blkf. 287. (1) Struver v. The Ocean Ins. Co., 9 (o) Walpole r. Cooper, 7 Blkf. 100; Abbott Pr. 23; Clark v. The Jefferson- Brown v. Lewis, 10 Ind. 232. ville, etc., R. R. Co., 44 Ind. 248; Bliss" (p) Beeson v. McConnaha, 12 Tnd. Code PI., 242; Green biuim r. Turrill, 420. 57 Cal. 285. 330 DEMURRER. [CHAP. answers to interrogatories can not be resorted to for the purpose of de- termining whether an answer is true or false. q Mr. Buskirk, in his work on Practice, after a citation of the authori- ties, says: " It results, from what has been said, that in this state an answer can only be rejected as sham where it plainly appears, upon its face, to be false in fact, and intended merely for delay." r This was very clearly the result of the later decisions prior to the revision of the code, but the rule has since been materially changed by statute. 498. Rule under the Revised Code. "An answer or other pleading shall be rejected as sham, either when it plainly appears, upon the face thereof, to be false in fact, and intended merely for delay, or when shown to be so by the answers of the party to special written in- terrogatories propounded to him. to ascertain whether the pleading is false." 8 The code thus adopts the rule as laid down in Beesou v. McConnaha, 12 Ind. 420; and, as the statute now stands, interroga- tories may be submitted, by the opposite party, for the purpose of lay- ing the foundation for a motion to strike out a pleading as sham ; and if the answers show the pleadings to be false in fact, the motion should be sustained. (1) The court may also strike out the pleading where it plainly appears, on its face, to be false in fact. 499. Can general denial be stricken out as sham. The question whether, in any case, the general denial can be stricken out as sham is one not free from doubt. It has been held, in New York, that it can not.' And Mr. Buskirk lays down the same rule in his work on Practice. 11 This must necessarily have been the case prior to the revised code, as no pleading could be stricken out unless it appeared, on its face, to be false. This could not appear on the face of a general denial. Therefore it could not be stricken out as sham, for the reason that there was no means of showing its falsity. But, under the present statute, if the answers to interrogatories should show that the party has no defense, his denial would clearly be a sham pleading, filed with no other object than to procure delay. In such case there could be no good reason why the general denial should not be stricken out the same as any other false pleading. This must be left, however, to be deter- (q) Boggess v. Davis, 34 Ind. 82; (s) K. S. 1881, 382. Raleigh v. Tossettel, 36 Ind. 295; (t) Wayland v. Tyson, 45 N. Y. Mooney v. Musser, 34 Ind. 373; Nel- 281; Thompson r. The Erie R. R. Co., son v. Cain, 42 Ind. 563. 45 N. Y. 468; Pom. Rem., 685. (r) Buskirk's Prac., p. 191. (u) Buskirk's Prac., p. 190. (1) Lowe v. Thompson, 86 Ind. 503; Moyer v. Brand, 102 Ind. 301. XIV.] DEMURRER. 331 mined by the construction that may be placed upon the section of the revised code. T 500. Frivolous pleading. This objection to a pleading applied, under the code of 1852, to demurrers and motions. It was provided that all frivolous demurrers and motions should be overruled. w But in the revision of section 77 the provision in reference to demur- rers and motions is omitted. x Therefore this objection can no longer be made to either a demurrer or motion under the statute. A frivolous answer is said to be one which, " assuming its contents to be true, presents no defense to the action." y Such an answer is subject to demurrer for want of sufficient facts, and whether it is called frivolous or not is immaterial as a question of practice. 501. Repugnancy. Repugnancy is not a cause for demurrer, but must be reached by motion to strike out. z 502. Argumentativeness. Argumentativeness is merely a de- fect of form, and not cause for demurrer. It may be reached by a motion to strike out, but as the ruling of the court on the motion does not affect the substantial rights of the parties, the question will not be considered in the supreme court. 8 503. That pleading is not verified. The code requires that the pleadings in certain cases shall be verified by the affidavit of the party or some one in his behalf. The failure to verify the pleading in such a case, although expressly required by statute, does not render it bad on demurrer. The question must be raised by motion to reject the pleading, on the ground that it is not verified. b (v) Mooney v. Musser, 34 Ind. 373. (b) Hagar v. Mounts, 3 Blkf. 57; (w) 2 R. S. 1876, p. 72, g 77; Bus- Hagar v. Mounts, 3 Blkf. 261; McCor- kirk's Prac., p. 188. mack v. Maxwell, 4 Blkf. 168; Dawson (x) R. S. 1881, 382. v. Vaughan, 42 Ind. 395; Pudney v. (y) Clark v. The Jeffersonville, etc., Burkhart, 62 Ind. 179; Turner v. Cook, R. R. Co., 44 Ind. 248, and cases cited. 36 Ind. 129; The Tell City Furniture (z) Forst v. Elston, 13 Ind. 482; Co. v. Nees, 63 Ind. 245; Toledo Agri- Buskirk's Prac., p. 185. cultural Works v. Work, 70 Ind. 253; (a) R. S. 1881, 398; Judah v. The Buchanan v. The Logansport, etc., R. Trustees of Vincennes University. 23 W. Co., 71 Ind. 265. Ind. 272; Bliss' Code PI., 333, 425 ; Pomeroy's Rem., ? 625, 626, 627. 332 DEMURRER. [CHAP. 504. Misjoinder of parties. There is a material difference be- tween the misjoinder of parties and a defect of parties. The latter is where a necessary party is omitted. This is made a cause of demurrer and has been considered.* 1 The former is where a part of the defendants are neither necessary nor proper parties to the action. This is a defect that can not be reached by demurrer by those who are properly made parties. 6 It has been shown that the joinder of too many plaintiffs is reached by demurrer for want of sufficient facts/ 505. Misnomer. The proper practice in case of a misnomer can not be regarded as settled in Indiana, nor perhaps in any of the states. 6 At common law, the remedy was by plea in abatement; but by statute, in England, the plea for this cause was abolished, and it was provided that the defendant might cause the declaration to be amended at the cost of the plaintiff, by inserting the right name. h There is no provision in our statute that changes the common-law mode of taking advantage of a misnomer, and the decided cases do not establish any rule on the subject. So far as it has been decided by the supreme court, it seems to have been taken for granted that the ques- tion is properly raised by plea in abatement ; and this, it is believed, is the proper practice. 1 In the case of Pedens v. King, the court say: "It is claimed that the suit ought to have been in the Christian as well as the surnames of the appellees. There is nothing in the objection. If it was true that the Christian names of the plaintiffs were omitted in the statement of the claim, it would be only matter in abatement." In Sinton v. The Steamboat R. R. Roberts, it is said: " It is ob- jected that the complaint is defective because there is an error in the name of the defendant, the boat being called in the body of the com- plaint the R. R. Roberts, alias the New Era, and in the note the T. W. Roberts. If the objection could be raised by demurrer it could only be by assigning for cause of demurrer a defect of parties defendants. This was not done. The proper remedy would have been a plea in abate- ment.'^ The statute requires that the names of the parties plaintiff and de- (c) Pomeroy's Reni., 206. (i) Pedens v. King, 30 Ind. 181; (d) Ante, 487 et seq. Sinton v. The Steamboat R. R. Roberts, (e) Makepeace v. Davis, 27 Ind. 352; 46 Ind. 476; post, 509. Gaff v. May, 38 Ind. 267. (j) Citing Mann v. Carley and Cha- (f ) Ante, 482. pin v. Carley, 4 Cowen, 148; Miller v. (g) Bliss' Code PI., 427. Stettiner, 7 Boswortb, 692; Miller v. (h) Stephen PI. 302. Stettiner, 22 How. Prac. 518. XIV.] DEMURRER. 333 fendant shall be set out in full. k And it has been uniformly held un- der this section of the statute that the Christian as well as surnames of the parties must be set out in full, and that the firm name of a part- nership is not sufficient. 1 But the question of the proper manner of raising the question seems to have received but little consideration. In Pollock v. Dunning the demurrer was for want of capacity to sue, and the court held that the demurrer should have been sustained. In Dale v. Thomas, a later case, it was held that a demurrer for want of capacity did not raise the question. In the Adams Express Co. v. Hill the demurrer was for want of sufficient facts. The complaint was held to be good, but the question whether the objection was prop- erly raised or not was not decided. The authorities, with the exception of Pollock v. Dunning, are uni- form that the question can not be raised by demurrer for want of ca- pacity to sue. And while it can not be said that the question is settled by authority in this state, it is believed that where there is a misnomer, that is where a party sues or is sued by a wrong name, but the defect does not appear on the face of the pleading, the objection must be raised by plea in abatemeut ; but where there is a defect in the name which appears on the face of the complaint, as, for example, where the initials are given, or a firm name, in violation of section 338, a demur- rer for want of sufficient facts is the proper remedy. 506. Answer of set-off in tort. A set-off can not be pleaded in an action for tort. m Nor can a debt be set off against a tort." But the question as to the proper manner of raising the question of the sufficiency of such a pleading is not so well settled, In the cases of Roback v. Powell and Allen v. Randolph it was held that a demurrer would lie. But in the later case of Boil v. Simms, in which the direct question was considered, it was held that the defect could not be reached by demurrer, but by motion to strike out. This may be regarded as the settled practice at the present time. 507. Statute of limitations. As a rule in this state, the fact that a cause of action or defense appears on the face of the pleading (k) R. S. 1881, 338. (m) K. S. 1881, 348; The Indian- (1) Haysa. Lanier, 3 Blkf.322; Hoi apolis. etc., R. R. Co. v. Ballard, '_'_' land w.Butler, 5 Blkf. 255; Livingston Ind. 448; Shelley v. Vanarsdoli, 2:5 v. Harvey, 10 Ind. 218; O'Donald v. Ind. 543; Roback v. Powell, 3t> Ind. The Evansville, etc., R. R. Co., 14 Ind. 515; Harris v. Rivers, 53 Ind. 21 rt 259; The Adams Express Co. v. Hill, (n) Allen v. Randolph, 48 Ind. J90; 43 Ind. 157; Dale v. Thomas, 67 Ind. Harris v. Rivers, 53 Ind. 216. 670; Pollock v. Dunning, 54 Ind. US. (o) Boil v. Simms, 60 Ind. 162- 334 DEMURRER. [CHAP. to be barred by the statute of limitations, does not render it subject to demurrer. Where there are exceptions in the statute it is not neces- sary to plead the exceptions in the first instance. This would be in violation of the rule that the complaint should not anticipate the de- fense. If there are exceptions they must be pleaded by way of reply, and a demurrer will not reach the defect. p But where there is no exception in the statute and the complaint shows upon its face that the action is barred, demurrer is the proper remedy. q 508. Amount of damages. In an action on contract for dam- ages, where the complaint avers the contract and a breach, a demurrer will not reach the question of the amount of damages the plaintiff is entitled to recover. The allegation of the making of the contract and its breach, discloses a cause of action for some amount, and although the complaint does not allege the damages sustained, or facts from which the damages can be ascertained, the plaintiff is still entitled to nominal damages, and the complaint will be held good on demurrer/ 509. Illegality of contract made on Sunday. It has been held that where a contract sued on, shows upon its face to have been executed on Sunday, the question of the legality of the contract can not be raised by demurrer. 8 The court say on a petition for a rehearing : " But aside from this question of practice, a majority of the court are of the opinion that the question sought to be raised does not arise upon the demurrer to the complaint. The point insisted upon is that the note having been exe- cuted on the first day of the week, commonly called Sunday, it is abso- lutely void. By the common law, a contract made on Sunday was valid, and such a contract only becomes invalid under and by force of our statute, which makes it unlawful for persons to perform common labor or pursue their usual avocation on Sunday. But there is an ex- ception in this statute in favor of 'such as conscientiously observe the seventh day of the week.' The exception being in the body of the statute, it is necessary that it should be shown by proper averments that the act complained of does not come within the exception. This (p) Riser v. Snoddy, 7 Ind. 442; etc., R. R. Co., 32 Ind. 113; Perkins v. Bowman v. Malory, 14 Ind. 424; Mat- Rogers, 35 Ind. 124, 141. lock v. Todd, 25 Ind. 128; Perkins v. (r) The Western Union Telegraph Rogers, 35 Ind. 124, 141; ante, 307, Co. v. Hopkins, 49 Ind. 223; Buskirk's 308, 309. Prac., p. 187. (q) Hanna v. The Jefferson ville, (s) Heavenridge v. Mondy, 34 Ind. 28, 35. XIV.] DEMURRER. 335 can not be done by demurrer, but must be done by answer. Our stat- ute only affects such persons as do not conscientiously observe the seventh day of the week, and consequently, a contract made on the first day of the week by persons who conscientiously observe the seventh day of the week is valid, and can be enforced in our courts. But there is another reason why the question can not be properly raised by de- murrer. Contracts that are prohibited by law because they are in their nature contrary to public policy or repugnant to the good of society or public morals are void, and in their very nature incapable of subse- quent ratification. But contracts void only because made on Sunday, proper and lawful in other respects, stand on a different basis, and form an exception to the general rule that void contracts are incapable of subsequent ratification."' 510. Defects in prayer. A defect in the prayer for relief is not such a substantial defect as can be reached by demurrer. If the facts stated entitle the party to any relief, the complaint must be held good on demurrer if no* relief is prayed for. The proper remedy is a motion to make the complaint more specific." But where the complaint is for the recovery of money, the amount of the demand must be stated. T The statement of the amount demanded is not strictly a prayer for relief. It is an allegation of a material fact, made necessary by an ex- press provision of the statute. The failure to allege the amount de- manded is therefore a substantial defect. 511. Part of paragraph. If a paragraph taken as a whole states a cause of action or defense, a part of the paragraph, though defective, can not be reached by demurrer. The remedy is by motion or answer. w But this rule is subject to exceptions. Thus, in an action on a bond, each assignment of a breach is regarded as so far a separate cause of action as to authorize a demurrer to each breach assigned ; and if such assignment is held to be insufficient, the demurrer thereto must be sus- (t) Love v. Wells, 25 Ind. 503; (v) K. S. 1881, 338; Colson i-. Banks v. Werts, 13 Ind. 203 ; Williams Smith, 9 Ind. 8 ; Kemp v. Mitchell, 36 v. Paul, 6 Bing. 653 ; Summer v. Jones, Ind. 249, 255. 24 Verm. 317; Adams v. Gay, 19 (w) Estep v. Estep, 23 Ind. 114 ; Verm. 353 ; Sargent v. Butts, 21 Verm. O'Haver v. Shidler, 26 Ind. 278; 99; Clough v. Davis, 9 N. Hamp. 500; Voorhees r. Hushaw, 30 Ind. 488; Smiths. Bean, 15 N. Hamp. 576. Smith v. The Muncie National Bank, (u) Bennett v. Preston, 17 Ind. 291; 29 Ind. 158; Mathews v. Norman, 42 Lowry v. Button, 28 Ind. 473; Goodall Ind. 176; Beals v. Beals, 27 Ind. 77. v. Mopley, 45 Ind. 355. 336 DEMURRER. [CHAP. tained, although there are others sufficiently alleged in the same para- graph. 1 And the same exception applies to actions for slander. There may be a demurrer to each set of words. 7 In either of these excepted cases, the party is not bound to demur, but may move to strike out. z WHAT DEFECTS REACHED BY DEMURRER. 512. Departure. The question, what defects are reached by de- murrer, has been considered, to a great extent, in what has been said of the several statutory causes of demurrer. But there are certain defects in pleading that have been held to be within the statute, about which there has been some question. Departure is a violation of the rules of pleading. A departure is said to take place " when in any pleading the party deserts the ground that he took in his last ante- cedent pleading and resorts to another."* Under our system of pleading, this can only occur in the reply. The decisions in this state have not been uniform .as to the proper manner of raising the question. It was first held that a departure was cause for demurrer under the code. b But this case was expressly over- ruled by a later case. The court say: " If the reply was a departure, still a departure is not a ground of demurrer. The objection should be taken by motion. In Will v. Whitney, 15 Ind. 194, the mode of taking the objection by demurrer was apparently approved ; but the point was not much con- sidered. We are satisfied, upon reflection, that a reply which may be a departure, technically, may still contain facts which, being permitted to go into the case without objection, should avoid an answer. This being so, a demurrer for departure can not be said to rest upon the ground that facts sufficient are not stated, etc., and it is not made, in terms, a ground of demurrer." The rule thus laid down was adhered to in a later case.* 1 But in McAroy v. Wright, 25 Ind. 22, the court returned to the rule as first decided, and overruled the cases, holding that departure was not cause for demurrer. In passing upon the question, the court say : "A reply which confesses its allegations confesses that the complaint (x) Colburn v. The State, 47 Ind. (z) Colburn v. The State, 47 Ind. 310. 310; Richardson v. '1 he State, 55 Ind. (a) Stephen PI., 9 Am. ed., p. 410; 381 ; Buskirk's Prac., p. 180. R. S. 1881, 357. (y) Rodgers v. Lacy, 23 Ind. 507; (b) "Will v. Whitney, 15 Ind. 194. Harrison v. Findley, 23 Ind. 265; (c) Reilley v. Rucker, 16 Ind. 303. Keersling v. McCall. 36 Ind. 321 ; Tay- (d) Deacon v. Swartz, 18 Ind. 285. lor v. Short, 40 Ind. 506. XIV. "I DEMURRER. 337 J is not true, and necessarily abandons the cause of action made by the complaint. " The paragraph of reply under consideration does this, and in setting up other facts in avoidance makes a new and different ground of action. There is not entire uniformity in the decisions of this court as to the proper method of taking advantage of the vice of departure in a reply which, it may be remarked, is the only pleading under the code in which it can ever exist. It is not important in this case to determine whether it must be done by demurrer or by motion, as here botli methods were used in the court below. The statute (section 67 of the code) expressly forbids a departure, but adds, very strangely, that the defendant may demur to a reply for any of the causes specified for de- murring to a complaint. This is simply nonsense, and if construed literally would make every reply that any sensible lawyer would be willing to prepare subject to demurrer. It can not be so construed, for it is beyond 'belief that the legislature meant to require that the reply should repeat the complaint. If it seeks by new matter to avoid the answer, and does not allege sufficient facts for that purpose, it must be held bad on demurrer assigning that cause. At common law, if the replication did not support the declaration, it was bad on general de- murrer, but it was too late to make the objection after verdict, and the judgment would not be arrested if the new ground assumed by the replication was sufficient to found an action upon. We see nothing in the code to change the previous rule. It is said, in Reilly v. Rucker, 16 Ind. 303, that a reply which may be a departure, technically, may still contain facts which, being permitted to go into the case without objection, should avoid an answer. We do not see how this can be possible in the nature of things. As already intimated, a departure under the code admits the groundlessness of the cbmplaint, abandons the case made by it aud makes a new case. This does not in any sense avoid the answer, but confesses it without avoiding it, otherwise it would not be a departure at all. The opinion of Marvin, J., in White v. Joy, 3 Kernan, 83, is to the same effect as Reilly v. Rucker. It, in like manner, loses sight of the essential definition of a departure, and proceeds to reason about a reply as being a departure which was not such, and held not to be by six of the seven judges in that very case. Inasmuch, then, as a departure is always a confession of the answer without alleging sufficient facts to avoid it and make a new case, we think that the objection may be taken by demurrer, and that in the present case the court below erred in overruling the demurrer to the second paragraph of the reply." 22 338 DEMURRER. [CHAP. It will be seen, from the different views expressed by the court, that the question is not free from doubt. But the rule laid down in the case of McAroy v. Wright has since been recognized as the law. 6 Aiid this may be taken as the settled rule in this state. 513. That written instrument foundation of the action or defense, is not made part of the pleading. What are written instruments within the meaning of the statute, and where they will be regarded as the foundation of the action, have been considered/ Under our code the written instrument which is the foundation of the action is held to be a material part of the pleading, and the omis- sion to set out either the original or a copy renders the pleading bad on demurrer for want of sufficient facts. 8 514. The statute of frauds. That a contract sued on appears on the face of the complaint to be within the statute of frauds is cause for demurrer. 11 And if the contract is such, that to be valid it must be in writing, under the statute of frauds, where it is not alleged in the complaint to be in writing, it will be conclusively presumed to be verbal, and the complaint held bad on demurrer. The rule was other- wise at common law. Under our statute it is held that, where the con- tract is not shown to be in writing, but may be taken out of the statute by part performance, or otherwise, the facts necessary to show that the contract, though not in writing, is not within the statute, must be alleged in the complaint, or it will be subject to demurrer. 1 515. Estoppel. Where the pleading shows, upon its face, such matter as would estop the party from maintaining the action or defense, it is cause for demurrer. j i (e) Bearrs v. Montgomery, 46 Ind. prise Ins. Co., 45 Ind. 43 ; Cook v. Hop- 544; Shirts v. Irons, 47 Ind. 445; Kim- kins, 66 Ind. 208; The Pennsylvania berlin v. Carter, 49 Ind. 111. Co. v. Holderman, 69 Ind. 18; Brown (f ) Ante, 47. v. The State, 44 Ind. 222; ante, 415. (g) Prices. The Grand Rapids, etc., (h) Harper v. Miller, 27 Ind. 277; R. R. Co., 13 Ind. 58; Herron v. Clif- Crosby v. Jeroloman, 37 Ind. 264; ford, 18 Ind. 411; West v. The Bull- Berkshire v. Young, 45 Ind. 461; skin Prairie Ditching Co., 19 Ind. 458; Krutz v. Stewart, 54 Ind. 178; Suinan Westfall v. Stork, 24 Ind. 377; Sea- v. Springate, 67 Ind. 115. wrightu. Coffmnn. 24 Ind. 414; Spaul- (i) Krohn v. Bantz, 68 Ind. 277: diiig v. Baldwin, 31 Ind. 370; Plow- ante, 421. man v. Shidlor, 36 Ind. 484; Hamrick (j) French v. Blanchard, 10 Ind. v. Craven, 39 Ind. 241; Galbreath v. 143; The City of Aurora v. Cobb, 21 McNeilen,40 Ind. 231 ; Mercer v. Her- Ind. 492; Greenup v. Crooks, 50 Ind. bert, 41 Ind. 459; King v. The Enter- 410; Trimble v. The State, 4 Blkf. 435. XIV.] DEMURRER. 339 516. Variance. A variance usually occurs between the pleadings and the proof on the trial, and does not arise upon the pleadings. But under our system of practice the written instrument must be filed with and made part of the pleading. It sometimes occurs that the exhibit filed varies from the allegations of the complaint. When this occurs, and the recitals of the written instrument are such that, if true, the plaintiff would not be entitled to recover, the complaint will be held bad, notwithstanding the complaint, aside from the exhibit, may state a cause of action. k 517. In claims against estates. Claims against estates are governed by the same rules as other pleadings, so far as the proper manner of testing their sufficiency is concerned. They may be tested by demurrer. 1 518. When demurrer equivalent to motion to strike out or dismiss. Having attempted to show what defects in pleading are reached by demurrer and what by motion, it is well to consider the effect of demurring where the remedy should be by motion. The effect of a failure to demur is considered farther on. m It has been held in a number of cases that, where the proper remedy is by a motion to dismiss or to strike out a pleading or paragraph, but, instead, a demurrer has been sustained, the demurrer will be regarded as equivalent to a motion, as the same result has been reached." WHAT IS WAIVED BY FAILURE TO DEMUR. 519. All defects appearing on face of pleading. It has been shown that where such a defect as is cause for demurrer appears on the face of the complaint, except the objection be that the court has not jurisdiction of the subject-matter of the action, or that the complaint does not state facts sufficient to constitute a cause of action, the ob- jection must be raised by demurrer. This general rule includes all of the causes of demurrer named in the statute, except the two, for want of j urisdiction of the subject- matter, and that the complaint does not state facts sufficient to consti- tute a cause of action ; and where the defect appears upon the face of the complaint, if the objection is not taken by demurrer, it is waived. p (k) The City of Elkhart v. Simon- (n) Spahr v. Schofield, 66 Ind. 168. ton, 71 Ind. 7, 17, and authorities (o) Ante, 478; R. S. 1881, 343. cited; ante, 416. (p) JR. S. 1881, 343; Busk. Prac. (1) R. S.I 881, 2324. 171. (m) Post, 519. 340 DEMURRER. [CHAP. The following defects appearing on the face of the pleading must, under the statute, be reached by demurrer, or they are waived : 1. That the court has not jurisdiction of the person of the de- fendant.* 1 2. That the plaintiff has not legal capacity to sue. 3. That there is another action pending. 4. That several causes are improperly joined/ and this objection can not be raised by answer. 8 520. Exception ; that the court has not jurisdiction of the subject-matter, and that complaint does not state facts suf- ficient not waived. It is expressly provided by the code that the objections that the court has not jurisdiction of the subject-matter, and that the complaint does not state facts sufficient to constitute a cause of action, are not waived by a failure to demur, 4 and it has been so held in numerous cases. u 521. Defects cured by verdict not waived. The rule that the objection that the complaint does not state facts sufficient, is not waived by a failure to demur is materially modified by the doctrine of " intend- ment after verdict." The pleader who purposely omits to demur to the complaint, for the reason that the omission does not waive the ob- jection, should not overlook the fact that a complaint, bad on demur- rer, is sometimes held to be good after verdict. If the defect is such (q) Keiser v. Yandes, 45 Ind. 174; Ind. 71; Tomlinson v. Hamilton, 27 Newell v. Gatling, 7 Ind. 147; Alii- Ind. 139; Hannum v. The State, 38 son v. Hedges, 5 Blkf. 546; The In- Ind. 32; Livesey v. Livesey, 30 Ind. dianapolis, etc., R. R. Co. v. Kenner, 17 398; Newhouse v. Miller, 35 Ind. 463; Ind. 135; Single v. Bickle, 17 Ind. 325; Riley v. Butler, 36 Ind. 51; Heitman Brady v. Richardson, 18 Ind. 1 ; Lud- v. Schnek, 40 Ind. 93; Bonham v. wick v. Beckamire, 15 Ind. 198; Van- Keen, 40 Ind. 197; Wright v. Norris, schiack v. Farrow, 25 Ind. 310; Ham- 40 Ind. 247; Baker v. Simmons, 40 rick v. The Danville, etc., Gravel Road Ind. 442; Davis v. Perry, 41 Ind. 305; Co., 32 Ind. 347; Nesbit v. Long, 37 Mercer v. Patterson, 41 Ind. 440; Mil- Ind. 300. ler v. Billingsley, 41 Ind. 489; Ridge- (r) Rankin v. Collins, 50 Ind. 158. way i\ Dearinger, 42 Ind. 157; Pack- (s) R. S. 1881, 343. ard v. Mendenhall, 42 Ind. 598; Mc- (t) R. S. 1881, 343. Goldrick v. Slevin, 43 Ind. 522; Sparks (u) Bolster v. Catterlin, 10 Ind. 117; v. Heritage, 45 Ind. 66 ; Scott v. The Blackledge v. Benedick, 12 Ind. 389; Indianapolis Wagon Works, 48 Ind. McClure v. McClure, 19 Ind. 185; Kip- 75; Ford v. Broker, 53 Ind. 395 ; The hart v. Brenneman, 25 Ind. 152; The Town of Brazil v. Kress, 55 Ind. 14. Toledo, etc., R. W. Co. v. Tilton, 27 XIV ] DEMURRER. 341 as to be cured by verdict, the party is deprived of the benefit of the objection, the effect being the same as a waiver. 7 What defects are cured by verdict will be considered in another place. w WHEN DEMURRER REACHES BACK. 522. For defects not cured by failure to demur. A demur- rer, filed to a subsequent pleading, may sometimes be carried back, and sustained to the complaint or answer. This can not be done, however, where the defect is one that is waived by a failure to demur. 1 Thus, it has been held that a defect of parties, which appears on the face of the complaint, can not be reached by a demurrer to the answer. 7 523. "Want of jurisdiction, and that pleading does not state facts sufficient. Under the code of 1852, as originally en- acted, it was held that the only defect in the complaint that could be reached by a demurrer to a subsequent pleading was want of jurisdic- tion, for the reason that section 54, as it then stood, provided that all other objections, except to the jurisdiction of the court over the subject- matter, should be waived by failure to demur.* The code was afterwards amended, by excepting from the effects of a failure to demur, the objection that the complaint does not state facts sufficient.* * Since this amendment, it has been held that the objection that the complaint does not state facts sufficient is not waived by a failure to demur ; b and not being waived, the demurrer reaches back for that cause. By the revision of 1881, section 54 is again amended by providing that the objection that the action is brought in the wrong county, if not taken by answer or demurrer, shall be deemed to have been waived. Therefore a demurrer will not reach back for this cause. (v) Bliss' Code PI., 438; Westfall (w) Post, 532. v. Stark, 24 Ind. 377; Dickerson v. (x} Buskirk's Prac., p. 178. Hays, 4 Blkf. 44; Peck v. Martin, 17 (y) McEwen v. Hussey, 23 Ind. 395. Ind. 115; The Indianapolis, etc., R. R. (z) 2 R. S. 1852, p. 39, 54; John- Co, v. Petty, 30 Ind. 261 ; Eigenman v. son v. Stebbins, 5 Ind. 364; Mason v. Backof, 56 Ind. 594; Tomlinson v. Toner, 6 Ind. 328; Freeman w. Robin- Hamilton, 27 Ind. 139; Howorth v. son, 7 Ind. 321 ; Gimbel v. Smidth, 7 Scarce, 29 Ind. 278; Gander v. Tho Ind. 627 ; Menifee v. Clark, 35 Ind. 304. State, 50 Ind. 539; Wiles v. Lambert, (a) 2 R. S. 1876, p. 59, 54; R. S. 66 Ind. 494; Galvin v. Woollen, 66 1881, 343. Ind. 464; Smith v. Freeman, 71 Ind. (b) Ante, 484, and authorities there 85; 2 R. S. 1876, p. 83, \ 101 ; Ibid., p. cited. 246, 580. (e) R. S. 1881, 343. 342 DEMURRER. [CHAP. The rule may be regarded as established that the objection that the court has not jurisdiction of the subject-matter, save on the ground that the action is brought in the wrong county, and that the complaint does not state facts sufficient to constitute a cause of action, may be reached by a demurrer to a subsequent pleading.* 1 524. Demurrer to reply reaches defects in answer and complaint. The provisions of section 343 are limited to objections to the complaint. The code formerly provided that " where the facts stated in the answer are not sufficient to constitute a cause of defense, the plaintiff may demur to one or more of several defenses, under the same rules and regulations as heretofore prescribed for demurring to the complaint. Unless the objection be taken by demurrer, it shall be deemed to be waived. 6 Under this section, it was held that a demurrer to the reply would reach back to the answer or complaint, where either showed a want of jurisdiction of the court over the subject-matter, or failed to state facts sufficient to constitute a cause of action or defense/ It was claimed, under section 64, that as all objections to the answer not taken by demurrer were waived, the demurrer to the reply could not be carried back, and this was in harmony with the decisions of the supreme court, as-applied to the complaint. But the supreme court held that, notwithstanding this provision of the section, the demurrer could be carried back.(l) But where a demurrer to the reply has been overruled, the plaintiff can not, on appeal, raise the question that it should have been carried back to the answer. (2) 525. Ruleunderthe Revised Statute of 1881. By the Revised Statutes of 1881, section 64 is very materially changed. It provides: " Sec. 346. Where the facts stated in any paragraph of the answer are not sufficient to constitute a cause of defense, the plaintiff may de- mur to it under the rules prescribed for demurring to a complaint." g It will be seen that, under this amended section, there is but one cause of demurrer: viz., that the answer does not state facts sufficient. The provision that the objection shall be waived by a failure to de- mur is omitted. At common law the insufficiency of the pleading was (d) Batty v. Font, 54 Ind. 482; Kel- The ^Etna Ins. Co. v. Baker, 71 Ind. log v. Tout, G-J Ind. 146. 102. (e) 2 R. S. 187G, p. 05. 64. (1) Standley v. Northwestern, etc., (f) Menifeo v. Clark, 35 Ind. 304; "Life Ins. Co., 95 Ind. 254. Wiley v. Howard, 15 Ind. 169; Busk. (2) Scheible r. Slavic, 89 Ind. 323. Prac. p. 178; Drook v. Irvine, 41 Ind. (g) E. S. 1881, 346. 430; Unfried v. Heberer, 63 Ind. 67; XIV.] DEMURRER. 343 not waived by a failure to demur, and a demurrer to a subsequent pleading would be carried back. 1 ' And as under the section, as revised, there is no waiver by a failure to demur, a demurrer to the reply must be sustained to the answer if it does not state facts sufficient to constitute a cause of defense. But as there is, under this section, but one cause of demurrer, a de- murrer to the reply can only reach the answer where this cause exists. To the extent that the decisions, under the original section, hold that the demurrer will be carried back where the answer states a cause of defense, not within the jurisdiction of the court, they are not applicable to the amended section. 526. Demurrer to plea in abatement can not be carried back. The rule that a demurrer to the answer will be carried back to the complaint, applies to answers to the merits. A demurrer to a plea in abatement can not be carried back.' WHAT DEMURRER ADMITS. 527. Facts well pleaded. For the purposes of the demurrer, the facts stated in the pleading demurred to are taken to be true, so far as they are well pleaded. J Strictly speaking the demurrer does not admit the facts to be true, although the rule is so expressed. While an answer, or other plead- ing, may be used in evidence against a party where it contains an ad- mission, a demurrer can not be used for any such purpose. It does not contain an admission of any fact. k The effect of the rule is, that for the purpose of determining the question of law presented by the demurrer, the facts well pleaded are taken by the court to be true. It is only such facts as are well pleaded that can thus be taken to be true. Thus, it is held that conclusions of law, though alleged in the pleading, are not admitted to be true. 1 The rule that it is only such facts as are well pleaded that can be taken to be true, must be taken to mean such facts as would be well pleaded when tested by demurrer. A pleading may be objectionable on the ground of uncertainty, indefiniteness, or other defects that can only be reached by motion ; but facts thus alleged must be taken to be (h) Msnifee v. Clark, 35 Ind. 304; ing Mill Ass'n v. The Cutler &Savidge Bliss' Code PL, 417; Tillotson v. Lumber Co., 64 Ind. 560; Bliss' Code Stipp, 1 Blkf. 77. PI., 418; Goddard v. Stockman, 74 (i) Price v. The Grand Kapids, etc., Ind. 400. E. R. Co., 18 Ind. 137. (k) Bliss' Code PI., 418. (j) Story's Eq. PI., 9 ed., 452; (1) Bliss' Code PI., 418; Story's Stephen PI. 143; The Southside Plan- Eq. PI., \ 452, and cases cited. 344 DEMURRER. [CHAP. well pleaded under the rule. The party may move to make the pleading more certain or definite before demurring. If he neglects to do this the facts must be taken to be true as pleaded, for the pur- poses of his demurrer. JOINT, SEVERAL, AND SEPARATE DEMURRERS. 528. When joint or several. Demurrers may be joint or sev- eral, either as to the parties who demur, or as to the pleading to which the demurrer is addressed. A demurrer is joint, as to the pleading, when addressed to an entire pleading consisting of more than one par- agraph. It is joint, as to the parties, where several parties join, in the same demurrer, either to the whole pleading or to separate paragraphs. A demurrer is several when addressed to but one paragraph of a pleading, or to each of the several paragraphs separately." 1 Where the demurrer is in terms addressed to the whole pleading, or to one paragraph, without attempting to demur to the others, there ia no difficulty in determining whether the demurrer is joint or several. But it frequently occurs that the pleader attempts to use such language as will make the demurrer both joint and several, applying it to the whole complaint, and to each of the paragraphs, or attempts to demur to each of the paragraphs in the same demurrer. There is much con- fusion in the cases as to the words necessary to make the demurrer several." What words are necessary to constitute a several demurrer was fully considered in Silvers v. The Junction R. R. Co. The court say : " The rule seems to be well settled that it is not necessary to make a demur- rer several that it should be addressed in terms to each paragraph of the pleading to which it is filed. The use of the words severally and each will cause a demurrer to be treated as several, although it is not separately addressed to each paragraph. Much confusion, delay, and expense would be saved if some recognized form was adhered to by counsel. It is always the better practice to make a demurrer several. There is nothing gained, and frequently much inconvenience results from a joint demurrer. From the adjudged cases in this court, since the adoption of the code, there is no room to doubt that a demurrer in (m) Busk. Prac. 193. 444; Aiken v. Bruen, 21 Ind. 137; (n) Lane v. The State, 7 Ind. 426; Hume v. Dessar, 29 Ind. 112; Silvers Earner v. Morehead, 22 Ind. 354; Jew- v. The Junction 11. K. Co., 43 Ind. ett v. The Honey Creek Draining Co., 435; Rennick v. Chandler, 59 Ind. 39 Ind. 245; Parker v. Thomas, 19 354; Stanford P. Davis, 54 Ind. 45; Ind.213; Fankboner v. Fankboner, 20 ' Meyer p.Bohlfing, 44 lnd.238; Wash- Ind. 62; Brown v. Gooden, 16 Ind. ington Townships. Bonney, 45 Ind. 77, XIV.] DEMURRER. 345 the following form, under the fifth specification, would be held to be a several demurrer : Comes now tiie defendant and demurs separately and severally to each paragraph of the complaint, and for cause of demurrer says that neither of said paragraph contains facts sufficient to constitute a cause of action. A demurrer to the answer or reply in the same form, with a change of phraseology, so as to adapt it to the particular plead- ing, would in like manner be treated as several." The supreme court has thus definitely settled what shall be necessary to constitute a several demurrer. A little care on the part of the pleader in using the language of the supreme court will avoid any question as to the form of the demurrer. 529. Separate demurrers. A demurrer is separate when filed by one of several plaintiffs or defendants. 1 * It may be either joint or several as to the pleading. Where there is any question as to whether the pleading may be good as to some of the parties and bad as to the others, a separate demurrer should be filed for each. Where a party demurs alone, there can be no question as to the demurrer being separate. Mr. Buskirk, in his work on Practice, very properly lays down a form for a separate demurrer. q But it is not necessary that such a form should be followed. Where the party demurs alone, his demurrer must be held to be separate, whether he so states in his demurrer or not. 530. Demurrer joint as to pleading must be overruled, if either paragraph good. The importance of determining whether a demurrer should be joint or several, and what language is necessary to make it several, is manifest. A joint demurrer goes to the whole pleading, and if any one of the paragraphs is good, the demurrer must be overruled, notwithstanding some of the paragraphs may be bad/ (o) Silvers v. The Junction R. R. v. Bowless, 15 Ind. 242; Brown v. Co., 43 Ind. 435, 444; Busk. Prac., p. Goodin, 16 Ind. 444; Urton v. Luckey, 195. 17 Ind. 213; Whitehall v. The State, (p) Busk. Prac., p. 194. 19 Ind. 27; Heavenridge v. Mondy, (q) Busk. Prac., p. 195. 34 Ind. 28; The Jeffersonville, etc., R. (r) The Excelsior Draining. Co. v. li. Co. v. Cox, 37 Ind. 325; Jewett v Brown, 47 Ind. 19; Towell v. Pence, The Honey Creek Draining Co., 39 47 Ind. 304; Rhodes v. Piper, 47 Ind. Ind. 245; The Jeffersonville, etc., R. 457; Modlin, Adm'r, v. The North- R. Co. v. Vane-ant, 40 Ind. 233; Wash- western Turnpike Co., 48 Ind. 492 ; ington Township v. Bonney, 45 Ind. Alexander v. Garr, 15 Ind. 89 ; Webb 77 ; The Board of Comm'rs of Jennings 346 DEMURRER. [CHAP. Therefore, it is safer m every case where the pleading consists of more than one paragraph to make the demurrer several. By making the demurrer several and applying it to all of the para- graphs, the whole complaint is tested as effectually as if the demurrer were joint in form, and the party has the advantage of testing the sufficiency of each paragraph. If either is bad the demurrer must be sustained to that paragraph, though it may not be well taken as to the other. 3 531. Joint as to parties must be overruled if pleading is good as to either. A demurrer may be joint as to the parties, and either joint or several as to the pleading to which it is addressed. If it is joint as to the pleading, and either paragraph is good against either party demurring, it must be overruled. If several as to any paragraph good against either of the parties, it must be overruled as to that paragraph. If bad as to all it should be sustained. If in either case the pleading or paragraph to which the demurrer applies is good as to any one of the parties, though it may be bad as to the others, it must be overruled as to all of them.' Unless the rights of the parties are identical, and the cause of action or defense applicable to all alike, it is the safer practice to file separate demurrers. HOW DEFECTIVE PLEADING CURED. 532. By verdict. The doctrine of intendment after verdict, by which a pleading that would be so defective as to render it bad on de- murrer will, in some cases, be held good after verdict, was a well settled common-law rule of pleading. u The common-law rule has not been changed by the statute which provides : " Sec. 398. The court must in every stage of the action disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, and no judgment can be reversed or affected by reason of such error or defect." v County v. Verborg. 63 Ind. 107 ; Rout 46 Ind. 524 ; Carter v. Zenblin, 68 Ind v. Woods, 67 Ind. 319; Pomeroy's 436. Rem., 577. (u) Stephen PI., 9 Am. ed., p. 148, (s) Pomeroy's Rem., JJ 577. and cases cited ; Chitty's PI. 712 (t) Trisler v. Trisler, 38 Ind. 282; Gould's PI., chap. 10, ?? 11, 12. Estep v. Burke, 19 Ind. 87; Teter v. (v) R. S. 1881, 398; Ibid., 658. Hinders, 19 Ind. 93 ; Owen v. Cooper, XIV.] DEMURRER. 347 Under this statute it is held by the supreme court that the most liberal form of intendment after verdict should be maintained. w At common law the question of the effect of the verdict on a de- fective pleading arose on motion in arrest of judgment. Under the code it may arise on motion in arrest of judgment, and on assignment of error in the supreme court that the complaint does not state facts sufficient. 533- What defects cured by verdict. There can be no definite rule laid down by which to determine what defects will be cured by verdict. This has been attempted in many cases, but it is difficult iu any given case to determine whether the facts defectively stated fall within the rule. Mr. Stephen, in his work on Pleading, quoting from an English case, says : " The extent and principle of this rule of alder by verdict is thus explained in a modern decision of the Court of King's Bench. Where a matter is so essentially necessary to be proved that had it not been given in evidence the jury could not have given such a verdict there, the want of stating that matter in express terms in a declaration, provided it contains terms sufficiently general to compre- hend it in fair and reasonable intendment, will be cured by verdict ; and where a general allegation must, in fair construction, so far require to be restricted that no judge and no jury could have properly treated it in an unrestrained sense, it may reasonably be presumed after ver- dict that it was so restrained at the trial." x (w) Newman . Perrill, 73 Ind. 154; 295; Parker v. Clayton, 72 Ind. 307; The Indianapolis, Pittsburgh and Charlestovvn School Township v. Hay, Cleveland R. R. Co. v. Petty, 30 Ind. 74 Ind. 127. 261; Westfall v. Stark, 24 Ind. 377; (x) Stephen PI. 148, citing Jackson Tomlinson v. Hamilton, 27 Ind. 139; v. Pesked, 1 M. & S. 234; 1 Saund. 228, Vawter v. The Ohio and Mississippi R. note 1 ; Smith v. Cleveland, 6 Met. :>:-J2, R. Co., 14 Ind. 174; Howorth ?\ Scarce, 334; Ward v. Bartholomew, 6 Pick. 29 Ind. 278; Gander v. The State, 50 408, 413; Wilson v. Coffin, 2 Gush. 316, Ind. 539; Eigenmann v. Backof, 56 324; Emmens v. Elderton, 4 House of Ind. 594; Peck v. Martin, 17 Ind. 115; Lords Cases, 624; Harris v. Goodwin, Wiles v. Lambert, 66 Ind. 494; Galvin 2 M. & G. 405; 2 Scott N. R. 459, and v. Woolen, 66 Ind. 464; Smith v. Free- 9 Dowl. 409 ; Thomas v. Fredericks, 10 man, 71 Ind. 85; Donnellan v. Hardy, Q. B. 775; Bain v. Clark, 10 Johns. 57 Ind. 393; Taylor v. Short, 40 Ind. 424; Harrison v. Mclntosh, 1 Johns. 506; Wilson v. Kelley, 58 Ind. 586; 380; Bartlett v. Crosier, 17 Johns. 458; Shaw v. The Merchants' National Shaw v. Redmond, 11 S. & R. 27; Bank, 60 Ind. 83; Hostetter v. The Rushton v. Aspinwall, 1 Doug. 679; 1 State, 62 Ind. 183; McMakin v. Wes- Smith's Lead. Cases, 926, 6 Am. ed., ton, 64 Ind. 270; The Indianapolis, and notes. See also Smock v. Har- etc, R. R. Co. v. McCafferty, 72 Ind. rison, 74 Ind. 348; Home Ins. Co. v. Duke, 75 Ind. 535. 348 DEMURRER. [CHAP. Mr. Chitty thus states the rule: "The doctrine upon this subject is founded upon the common law, and is independent of any statutory enactment. The general principle upon which it depends appears to be, that where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer; yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission is cured by the verdict. " y A clear distinction has been made, in applying the rule, between a cause of action imperfectly stated and the failure to state a cause of action. The effect of the rule, at common law, was not to supply the omission of an allegation of a fact necessary to show a cause of ac- tion, but to aid, by presumption, a defective or imperfect statement of a material fact. 2 With this construction of the rule there is little room for the doc- trine of intendment after verdict under our code. The defects that were cured by verdict at common law are not cause for demurrer under the statute. The fact that a cause of action is imperfectly or de- fectively stated is not cause for demurrer, but must be reached by motion.* It will be noticed that, in some of the decided cases in Indiana, the pleading is said to be cured by verdict when it would not be subject to demurrer. b In these cases no distinction seems to be recognized between such defects in a pleading as can not be reached by demurrer, and do not need the aid of the verdict, and those which are cause for demurrer, and may be thus aided. Indeed, it is difficult to see how a pleading subject to demurrer on the ground that it does not state facts sufficient to constitute a -cause of action, can be cured by verdict under the stat- ute. It must be subject to demurrer on the ground that it does not state a cause of action. It is uniformly held that this defect is not waived by a failure to demur, and that the question may be raised for the first time by an assignment of error in the supreme court. Not- (y) 1 Chitty's PI. 712; Gould's PI., Irvin v. Bull, 28 Am. Dec. 708 (4 chap. 10, 11 et seq.; Bliss' Code PI., Watts, 287). 438. (a) Ante, 491 et seq. ; Pom. Rem., (z) Newman v. Perrill, 73 Ind. 133; 548, 549, 550, and notes. Bliss' Code PI., 438; Anderson v. (b) Donnellon v. Hardy, 57 Ind. Reed, 5 Am. Dec. 661 (2 Overton, 205) ; 393; Smith v. Freeman, 71 Ind. 85. XIV.] DEMURRER. 349 withstanding the express statutory provision that such a defect is not waived by a failure to demur, the supreme court has held in a number of cases that a complaint that would have been bad on demurrer on the ground that it did not state facts sufficient, will be held good under an assignment of error or motion in arrest of judgment. Thus, in case of a failure to file with the complaint a copy of the written instrument which is the foundation of the action, it is held in a long line of decis- ions that the pleading is bad on demurrer for the want of sufficient facts. In other words such a complaint does not state a cause of ac- tion. But the supreme court holds that the failure to file the written instrument is cured by verdict.* 1 Again, it is held that in an action on a note, the complaint must al- lege that the note is unpaid or it will be bad on demurrer. 6 This is upon the ground that the allegation that the note is unpaid is material, and the objection goes to the substance of the pleading. Yet the supreme court holds that the failure to allege that the note is unpaid is cured by verdict/ It will thus be seen that our supreme court has not only construed the common-law doctrine of intendment after verdict liberally, but has gone beyond the rule in holding that the omission of a material aver- ment may be cured by verdict. 8 But where a demurrer to a pleading has been erroneously overruled the pleading is not aided by section 659 of the code. h 534. By answer. A defective complaint may be cured by the al- legations of the answer. Thus it has been held that where, in the complaint, the initials only of the plaintiff's Christian name were given, the complaint would have been bad on demurrer, but the defendant having given the full name in the answer the defect was cured.' And where a defective description is given in the complaint, the de- fect is cured by a correct description in the answer.J The rule is not confined to formal defects. (c) Ante, 415 et seq. Charlestown School Township v Hay, (d) Westfall v. Stark, 24 Ind. 377; 74 Ind. 127. Eigenmann v. Backof, 50 Ind. 594; Gal- (h) Johnston v. Breedlove, 72 Ind. vin v. Woollen, 66 Ind. 4(54. 3G8, 372; Sinker, Davis & Co. v. (e) Lawson v. Sherry, 21 Ind. 303; Fletcher, 61 Ind. 276; Utica Town- Pace v. Grove, 2(5 Ind. 26; Green v. ship v. Miller, 62 Ind. 230; Friddle v. Louthain, 49 Ind. 139. Crane, 63 Ind. 583. (f) Howorth v. Scarce, ?9 Ind. 278. (i) Sherrod v. Shirley, 57 Ind. M. (g) Parker v. 'Clayton, 72 Ind. 307; (j) Wiles v. Lambert, 66 Ifid. 41)4. 350 DEMURRER. [CHAP. Substantial averments omitted in the complaint may be supplied by the answer. k Under the peculiar system of pleading recognized in this state, by which a defendant is permitted to set up different defenses that are en- tirely inconsistent, the question whether an allegation in one paragraph that supplies an omission in the complaint should be held sufficient to render the complaint good where the same fact is expressly denied, controverted, or not admitted in another, is open to question. The ground upon which the omitted allegation is held to be unnecessary in the complaint is that it is admitted in the answer. Can the admission in one paragraph have this effect when it is denied or not admitted in another. So far as I know, this question has not been passed upon by the supreme court. It is believed, hoAvever, that an allegation in one para- graph of answer could not have the effect to render the complaint sufficient under such circumstances as against a defense set up in another paragraph. 535. By statute. In addition to the common-law intendment after verdict, statutes have been passed in most, if not all of the states, in aid of defective pleadings. 1 Such statutes were passed also in England, and are commonly known as the statutes of Jeofails. The statutes of Jeofails and amendments cured only formal defects, and not such as went to the substance of the pleading." 1 In this state we have the following statute : "Sec. 658. No judgment shall be stayed or reversed, in whole or in part, by the supreme court, for any defect in form, variance or im- perfections contained in the record, pleadings, process, entries, returns, or other proceedings therein, which, by law, might be amended by the court below, but such defects shall be deemed to be amended in the supreme court ; nor shall any judgment be stayed or reversed, in whole or in part, where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below."" It will be seen that the statute is confined, as far as the pleadings are concerned, to any "defect inform, variance, or imperfections, ?r/W. by law might be amended by the court below." (k) Watkins v. Gregory, 6 Blkf. 113; (1) Bliss' Code PI., ? 440. Wilson v. Markle, 6 Blkf. 118; Bliss' (m) Stephen PI. 97. Code PI., 437; Birely's Ex'rs v. Sta- (n) R. S. 1881, 658. ley, 2f Am. Dec. 303^ 308 (5 Gill. & Johnson, 432). XIV.J DEMURREK. 351 If the statute were confined to matters of form merely, as was clearly the intention, it could not cure a pleading bad on demurrer, as under the code defects in matter of form are not cause for demurrer. There are, however, two clauses in the section that must be considered. The latter clause is more general in its terms. It is that no cause shall be stayed or reversed where the " merits, of tlie cause have been fairly tried and determined in the court below." This clause should not be construed to affect the pleadings. It evi- clently applies to the trial. The merits of a cause might be fairly tried without any pleading, or with a complaint, answer or reply clearly bad on demurrer. To apply this provision to the pleadings and give it its full meaning, would be to cure the defects in any pleading, no matter how radical they might be, where the merits of the cause appeared to have been fairly tried. Yet this part of the section has sometimes been called in aid of a defective pleading by the supreme court. Section 398 of the statute bears upon this same question. It provides : "The court must in every stage of the action disregard any error or defect in the pleadings or proceedings which does not affect the sub- stantial rights of the adverse party, and no judgment can be reversed or affected by reason of such error or defect." p This section, like the others, should be confined to formal defects. In the decided cases the supreme court have considered these two sectipns of the statute and the effect of verdict on the pleadings to- gether, and it is sometimes difficult to determine whether the statute or the verdict is regarded as curing the defect. That section 658 reaches only defects in form, has been decided by the supreme court. q It is held that, under this section and section 398, the supreme court will not reverse a case on account of " any error or defect in the plead- ings which does not affect the substantial rights of the party com- plaining. 1 "" But an examination of the authorities will show that the statute is given a very broad construction, applying it to defects that would, under the code, be cause for demurrer, which must be a substantial de- fect. The authorities cited, in considering defects cured by verdict, bear upon this question. 8 (o) "Wiles T>. Lambert, 6G Ind. 494; genmann v. Backof, 56 Ind. 594; Lam- Scott v. Zartman, 61 Ind. 328. son v. Falls, 6 Ind. 309 ; Wiles v. Lam- (p) R. S. 1881, 398 bert, 66 Ind. 494; Scott v. Zartman, 61 (q) Veach v. Pierce, G Ind. 48. Ind. 328. (r) Hedge v Sims, 29 Ind. 574; Ei- (s) Ante, 532. 352 DEMURRER. [CHAP. The question, as to what defects might be amended by the court be- low, is considered in the chapter on amendments.' It is impossible to lay down any general rule by which to determine whether a defect falls within either of these sections of the/ statute or not. The authorities furnish no such rule. Each case must neces- sarily depend upon the condition of the pleadings in that case, and the view of the court as to whether the defect is one that substantially affects the complaining party or not. 536. By award. In respect to the effect upon the defective plead- ing an award is held to be the same as a verdict. The same defect that would be cured by verdict, it has been held, is cured by an award in the plaintiff's favor." WHEN RULING ON DEMURRER HARMLESS. 537. Demurrer sustained to good paragraph. Out of these same statutory provisions grows the doctrine that a ruling on demur- rur, although erroneous, will not reverse the cause if the ruling does not .affect the substantial rights of the complaining party. Thus, where a demurrer is sustained to a good paragraph of pleading, but the same facts can be proved under another paragraph not demurred to, or to which a demurrer has been overruled, no injury can result to the party and the ruling will be harmless/ 538. Overruled to bad paragraph. Where a demurrer is erroneously overruled to a bad paragraph the ruling may or may not be harmless. If the finding and judgment of the court are based solely on other paragraphs of the pleading, that are good, or where the finding on the paragraph to which the demurrer was overruled, is for the plaintiff and against the defendant, the ruling is harmless." But where there is nothing in the record to show that the finding (t) Post, 694 et seq. v. Wray, 32 Ind. 120; Patterson v. (u) Dickerson v. Hays, 4 Blkf. 44. Lord, 47 Ind. 203; Smith v. Denman, (v) Fuller r. Wright, 59 -Ind. 333; 48 Ind. 65; The Pittsburgh, etc., R. R. Porter v. Silvers, 35 Ind. 295; Wilson Co. v. Van Houten, 48 Ind. 90; Fisher r. Root, 43 Ind. 486; The Aurora Fire v. Hamilton, 48 Ind. 239; McGee r. Ins. Co. t). Johnson, 46 Ind. 315; Em- Kobhins, 58 Ind. 463; Trogden v. De- mens v. Meeker, 55 Ind. 321; Martin card, 45 Ind. 572. r. Merritt, 57 Ind. 34; Wolf v. Scho- ^w) Blessing r. Blair, 45 Ind. 546; field, 38 Ind. 175; The Evansville, Keegan r. Carpenter, 47 Ind. 597; etc.. R. R. Co. v. Baum, 26 Ind. 70; Blassingame v. Blassingame, 24 Ind. Rhode v. Green, 26 Ind. 83; Tomlin- 86; Hawley v. Smith, 45 Ind. 183. son v. Hamilton, 27 Ind. 139; Wray XIV.] DEMURRER. 353 was exclusively upon the good paragraph, the supreme court will re- verse the case. 1 WHEN DEMURRER WAIVED. 539. By pleading over. A demurrer must be interposed at the proper time or it id waived. There can be no demurrer after pleading to the merits. And where a demurrer is pending it is waived by filing an answer without requiring a decision on the demurrer. 7 540. Can not plead and demur at same time. It follows from the rule, that to plead to the merits waives a demurrer that a party can not plead and demur to the same paragraph at the same time. 2 The demurrer in such case is waived. But a party may at the same time demur to one paragraph and plead to another. 541. By going to trial. The effect of going to trial while a de- murrer is pending is not well settled by authority. If no demurrer has been filed, the right to demur is waived by going to trial. But where the party has demurred and no decision has been rendered on the question of law presented by the demurrer, it is a question of much doubt whether the demurrer is waived by going to trial. In some of the decided cases in Indiana, it is clearly decided that the mere fact of the parties going to trial without requiring that the de- murrer shall be passed upon does not waive the demurrer, and that the court has no power to proceed with the trial with the question of law pending.* In later cases the rule has been modified. 1 " And in one case it is held unqualifiedly that by going to trial the demurrring party waives the demurrer. (x) Wolf v. Schofield, 38 Ind. 175; ley v. Harkness, 2 Blkf. 34; Hosier v. Peery v. The Greensburg, etc., Turn- Eliason, 14 Ind. 523; Story's Eq. PL, pike Co., 43 Ind. 321; Bailey v. Troxel, 462,463,465. 43 Ind. 432; Busk. Prac. 186. (a) Gray v. Cooper, 5 Ind. 506; (y) Beckner v. The Riverside, etc., Tam v. Shaw, 10 Ind. 469; Anderson Turnpike Co., 65 Ind. 468; Morrison v. Weaver, 17 Ind. 223; Waldo v. v. Fisher, 64 Ind. 177; Gordon . Cul- Richter, 17 Ind. 634 ; Kegg v. Welden, bertson, 51 Ind. 334; De La Hunt v. 10 Ind. 550. Holderbaugh, 58 Ind 285; Moss v. (b) Haun v. Wilson, 28 Ind. 296; Witness Printing Co., 64 Ind. 125; Miles v. Buchanan, 36 Ind. 490. Hosier v. Eliason, 14 Ind. 523. (c) Irvinson v. Van Riper, 34 Ind. (z) Hair v. Weaver, 1 Elkf. 77; Ri- 148. 23 354 DEMURRER. [CHAP. In thecabeof [Tunny. Wilson, the court makes a distinction between the demurring party and his opponent as to the effect of going to trial. It is held that the party who files the demurrer must see that it is sub- mitted and passed upon before proceeding to trial, and a failure to do so on his part waives the demurrer. 542. Effect of adjudicated cases. In most of the cases cited it is difficult to determine Avhether the going to trial is held to waive the demurrer, or the failure to make the proper objection in the lower couFt waives the error of going to trial without disposing of the issue of law. In most, if not all of the cases, the question was not pre- sented to the court below in any form, and none of the cases seem to be clear as to the manner in which it should have been presented. In the case of Haun v. Wilson, the court say: "The objection might have been taken in the case under consideration by motion in arrest of judgment, which lies for any matter intrinsic appearing upon the face of the record amounting to a defect not amendable, or aided at com- mon law or by statute, and for which a writ of error at common law would lie." d In the same case it is assumed that the question might have been presented by motion for a new trial. And so it is in other cases. 6 In one case the cause was reversed for error of the court in going to trial before disposing of the demurrer, and the question was presented by a motion for a new trial, assigning this as one of the causes/ If the question can be presented either by a motion in arrest or for a new trial, the party does not waive his demurrer by going to trial, and this is the effect of the great weight of the authorities. He may go to trial without objection and then move in arrest, or for a new trial, because the court proceeded to trial without disposing of the demurrer. It is true that the error assigned as cause for arresting the judgment, or for a new trial, is a new one not arising upon the demurrer, but if the party waived his demurrer by going to trial no such error could arise. 543. "When court presumed to have passed upon demur- rer. Where the cause is tried by the court it will be presumed in the supreme court that in passing upon the question of fact the court has also decided the question of law presented by the demurrer. But where the cause is tried by a jury no such presumption can arise. g (d) Haun v. Wilson, 28 Ind. 296, (f) Anderson v. Weaver, 17 Ind. 305. 223. (e) Miles v. Buchanan, 36 Ind. 490. (g) Hosier v. Eliason, 14 Ind. 523? Anderson r. Weaver. 17 Ind. 223. XIV.] DEMURRER. 355 544. Effect of "waiver. A party may waive his right to demur. If the objection is one that is waived by a failure to demur the waiver of the demurrer waives the defect, but where the defect is not waived by failure to demur, the neglect to demur only postpones the right to raise the objection to a later stage of the case by motion in arrest or assignment of error in the supreme court. DEMURRER IN PARTICULAR CASES. 545. Petition for highway. There are a few special cases in which it has been doubted whether a demurrer will lie or the manner of de- murring is unusual that deserve particular consideration. In proceed- ings to open or vacate public highways the practice is not provided for by statute, and the adjudicated cases are numerous and conflicting. One of the questions has been whether the practice in such cases allows of a regular course of pleading as in ordinary civil cases. Whatever may be the effect of the decisions on other points of practice, it is well settled that the sufficiency of the petition may be tested by demurrer as complaints in other cases. 11 546. Mandate. In mandamus the writ of mandate is the plain- tiff's complaint^and the return to the writ is the answer. Therefore, a demurrer lies to the writ as to the complaint, and to the return as to the answer.' But the affidavit and motion may be looked to in aid of the writ. J 547. Proceedings supplementary to execution. In this pro- ceeding the affidavit filed on behalf of the judgment debtor is in the nature of a complaint, and may be tested by demurrer. k DEMURRER TO EVIDENCE. 548. Its form. Demurrer to the evidence was a common-law pleading that was regarded as analogous to a demurrer to a pleading. 1 The old practice was for the court to order a note of the evidence to be taken which was signed by counsel on both sides, and the demurrer was affixed to (h) Vandever v. Garshwiler, 63 Ind. Legal Kem., gg 449, 451, 457; Potts v. 185, 191. The State, 75 Ind. 336; post, g 546. (i) K. S. 1881, g 1171 ; The Board of (j) Gill v. The State, 72 Ind. 266; Commissioners of Clark Co. v. The Potts v. The State, 75 Ind. 336; post, State, 61 Ind. 75; The Board of Com- g 546. missioners v. The State, 61 Ind. 379; (k) R. S. 1881, g 822. Johnson v. Smith, 64 Ind. 275; Smith (1) Stephen PI., p. 89. v. Johnson, 69 Ind. 55; High's Ext. (m) Lindley v. Kelley, 42 Ind. 294. 356 DEMURRER. [CHAP. The right to demur is recognized under the code, but the party must set out the evidence fully in his demurrer." 549. What demurrer admits. As a rule there is nothing to be gained by a demurrer to the evidence. So much is admitted by the demurrer that, where it will be sustained, the cause should be reversed on the ground that the evidence is not sufficient to sustain the verdict of the jury. It is held that the legal effect of a demurrer to the evidence is, that all the facts of which there is any evidence, and all conclusions which could fairly and logically be deduced from those facts, are admitted. 550. Waives objection to admissibility of evidence. If there is any question as to the admissibility of any of the evidence ad- mitted on the trial that the party desires to present in the supreme court, he should not demur to the evidence, as the demurrer waives all objections to the admissibility of evidence. p 551. Joinder in demurrer. It has been held, that where the evidence was properly set out in the demurrer, the opposite party might be compelled to join in the demurrer. q But it is now well settled, by authority, that whila the party may join in the demurrer, it is unnecessary. 1 552. What joinder admits. By joining in demurrer a party admits that the evidence is properly and fully set out. 8 Therefore, if there is any doubt whether the evidence is properly set out in the demurrer, the party should refuse to join, and move the court to require the party demurring to set out such evidence as is sup- posed to be omitted. In Lindley v. Kelley, in which the practice is fully considered, the court say: " By a joinder in demurrer the party admits that the evi- (n) Griggs v. Seeley, 8 Ind. 264; Fike, 2 Blkf. 374; The City of Indian- Lindley w. Kelley, 42 Ind. 294; Strough apolis v. Lawyer, 38 Ind. 348; Busk. v. Gear, 48 Ind. 100. Prac. 196 et seq.; The O. & M. R. R. (o) Peabody v. Peabody, 59 Ind. Co. v. Collam, 73 Ind. 261. 556; Strough v. Gear, 48 Ind. 100; (p) Miller v. Porter. 71 Ind. 521. Bailey v. Boyd, 59 Ind. 292; Atherton (q) McCreary r. Fike, 2 Blkf. 874. v. The Sugar Creek, etc., Turnpike Co., (r) Lindley v. Kelley, 42 Ind. 294; 67 Ind. 334; Pinnell v. Stringer, 59 Busk. Prac. 202. Ind. 555; Eagan v. Downing, 55 Ind. (s) Lindley v. Kelley, 42 Ind. 294; 65; The Indianapolis, etc., R. W. Co. Busk. Prac. 202. v. Goar, 62 Ind. 411; McCreary v. XIV.] DEMURRER. 357 dence is properly set out. If the party offering the evidence is of the opinion that the evidence is not fully and correctly set out he should refuse to join in demurrer, but should pray the judgment of the court, that his adversary may not be admitted to his demurrer until the evi- dence is fully and correctly set forth ; and he should show to the court wherein the evidence is not fully and correctly set forth." 358 ANSWER. [CHAP. CHAPTER XV. SECTION. 553. Scope of the chapter. 554. Eule to answer. ANSWER. (1) SECTION. ANSWER IN BAR. 577. The statute. DISCLAIMER. 555. Nature and effect of. 656. When party may disclaim. 557. May disclaim part and answer part of complaint. 558. Interpleader. ABATEMENT. 559. Nature of the defense. 560. Must precede pleas in bar. 561. Must be specially pleaded. 562. Must be verified. WHAT MAY BE PLEADED IN ABATE- MENT. 563. Want of jurisdiction of the per- son. 564. Want of capacity to sue. 565. Non-joinder of necessary parlies. 666. Must show that omitted defendant is still living. 667. Another action pending. 568. Can attachment proceedings be pleaded in abatement? 569. Misnomer. 570. Actions prematurely brought. 571. Death of party. 572. In attachment proceedings. :O"W MATTERS IN ABATEMENT WAIVED. 573. By failure to demur. 574. By pleading to the merits. 575. By going to trial on the merits. 576. Answers in abatement strictly onstruedo THE GENERAL DENIAL. 578. Object and form. 579. What may be proved under. 580. Mitigation of damages. 581. In actions to recover real estate and to quiet title. WHAT THE GENERAL DENIAL ADMITS. 582. Capacity of plaintiff to sue. 583. Execution of written instrument. 584. Executors, administrators, and guardians need not deny execu- tion of written instrument, un- der oath. 585. Existence of corporation plaintiff. NEW MATTER SPECIAL ANSWER. 586. What is new matter. MANNER OF STATEMENT. 587. Defenses must be separately pleaded and numbered. 588. Answer may go to part of a para- graph of complaint. 589. May confess and avoid a part and deny a part of complaint in same paragraph. 590. Answer must state facts. 591. Defenses may be inconsistent. 592. Each paragraph must be good within itself. 593. Equitable defenses. WHAT MUST BE PLEADED SPECIALLY, AND HOW PLEADED. 594. Payment. (1) For forms of answers, see Vol. 3, pp. 332-402. XV.] ANSWER. 359 595. What plea of payment must con- tain. 596. Payment after suit brought. 597. Payment of less than is due. 598. Accord and satisfaction. 599. Arbitration and award. 600. Want of consideration. 601. Who may plead want of consid- eration. 602. Illegal consideration. 603. Failure of consideration. 604. Partial failure of consideration. 605. Former adjudication. 606. Estoppel in pais. 607. Estoppel against married women. 608. Release of surety; failure to sue principal. 609. By extending time to principal. 610. By alteration of the contract 611. By surrender of lien on property of principal, or other security held by creditor. 612. Release of indorser; by failure to sue maker. 613. Tender. 614. Effect of tender. 615. Tender after suit brought. 616. Failure of plaintiff to tender per- formance. 617. Usury. 618. Who may plead usury. 619. Breach of covenant; deed the foundation of the action. 620. Of title and for quiet enjoyment. 621. What will amount to an eviction. 622. Covenant against incumbrances. 623. Covenants in deeds of general warranty. 624. Covenants of married women. 625. Discharge in bankruptcy. 626. Statute of limitations. 627. The statute of frauds. 628. Fraud. 629. Adverse possession of real estate. 630. Release or other discharge. ANSWERS IN LIBEL AND SLANDER. 631. Mitigation of damages. 632. Truth of the words. 633. In tort generally. 634. What 'must be pleaded specially by executors and administrators. ANSWERS THAT MUST BE VERIFIED. 635. Non est factum. 636. Non est factum, by executors and administrators. 637. Answer in proceedings supple- mentary to execution. ANSWERS PUIS DARREIN CONTINU- ANCE. 638. When and how pleaded. 553. Scope of the chapter. The statute treats set-off and counterclaim as matter that may be set up by way of answer. As will appear hereafter, a set-off may be more than a defense, and a counterclaim is not a defense, but a new cause of action. This chapter will be confined to the subject of answers proper, leaving the consideration of set-off and counterclaim for a subsequent chapter.* 554. Rule to answer. Before there can be a rule to answer, the defendant must be before the court by actual appearance, either in per- son or by attorney. And unless there is a voluntary appearance to the action there can (a) Post, chap. 16. 360 ANSWER. [CHAP. be neither a default nor a rule to answer until the second day of the term. b Where there has been service, the defendant may be called on the second day of the term. If an appearance is entered he should be ruled to answer. The rule is usually entered on the second day, and should be discharged at the next calling of the docket, either by filing some motion, demurrer, or answer to the complaint, or by showing some reason for not complying with the rule. The time in which a party is allowed to plead is not fixed by stat- ute. The time may be fixed by the judge of the court, as he may deem just. c It is provided, by statute, that where the defendant fails to plead within the time fixed, the court shall forthwith enter judgment as upon a default." But where the defendant has entered an appearance, the better practice is to close the- rule to answer, and order a judgment for the want of an answer. DI^CLAIMER.(l) 555. Nature and effect of. A party may avoid pleading to the complaint, in some instances, without suffering a default. If the action is " to recover possession of real estate, or to determine conflicting claims thereto," he may disclaim any interest in the re'al estate by filing what is termed a disclaimer. The statute provides that "if in such cases the defendant disclaim, in his answer, any interest or estate in the property, or suffer judg- ment to be taken against him without answer, the defendant shall re- cover costs. 6 While the statute speaks of a disclaimer as an answer, it is not an answer in any sense of the term. It forms no issue to be tried ; but simply puts the defendant out of court without further proceedings, leaving the plaintiff to pay the costs. 556. "When party may disclaim. The right of a party to dis- claim is recognized by the code only in actions to recover real estate or determine conflicting claims thereto ; and it has been held that it can only be done by a party not in possession/ (b) Ante, 448; Jelley v. Gaff, 56 PI., 838, 838a; MeCarnan v. Coch- Ind. 331. ran, 57 Ind. 166. (c) K. S. 1881, ? 400, 405. (f ) Kagan r. Haynes, 10 Ind. 348; (d) R. S. 1881, \ 401. Choan v. Porter, 66 Ind. 194; McCar- (e) R. S. 1881, ? 1072; Erskine v. nan v. Cochran, 57 Ind. 166. McCutchan, 9 Ind. 255; Story's Eq. (1) For forms of disclaimer, see Vol. 3, p. 332. XV.] ANSWER. 361 If the defendant is in possession, or the complaint seeks affirma- tive relief against him, he can not avoid liability by a disclaimer. 8 Mr. Story, in his work on Equity Pleading, says: "Indeed it may be laid down as a general rule, that in no case can a party get rid of his liability to answer a suit by a mere disclaimer if his answer may properly, under all the circumstances, be required. Thus, for exam- ple, if his disclaimer does not show that he is under no liability in respect to the matters of the bill it will be bad. So if the bill alleges some other facts, as that the defendant has mixed himself up with the whole transaction, and has by his personal conduct, made it necessary that the bill should be filed, a mere disclaimer will not enti- tle him to be dismissed from further answering the suit ; for, under such circumstances, justice might not be done to the other party. Generally speaking, therefore, a mere disclaimer is scarcely to be deemed sufficient or proper, except where the bill simply alleges that the defendant claims an interest in the property in dispute, without more ; for, under such circumstances, if he claims no interest, that is a sufficient answer to the allegation." h 557. May disclaim part and answer part of complaint. The practice, under the code, authorizes a party to demur to part of a pleading and answer a part. The plaintiff having the right to join several causes of action in the same complaint, in separate para- graphs, the defendant may disclaim as to one paragraph and answer as to another.' And where the plaintiff sets out different tracts of land in the same paragraph of complaint, alleging that the defendant claims some in- terest therein, he may disclaim as to one tract and demur or answer as to another. 558. Interpleader. Where the defendant admits his liability in an action upon a contract or for specific real or personal property, he may, where a third party is claiming the same debt or property, avoid answering, as well as any further cost, by an affidavit for interpleader.-" The practice in this class of cases has already been considered. k ABATEMENT.(l) 559. Nature of the defense. A plea in abatement is one that (g) Story's Eq. PL, ? 838", 840. ( j) R. S 1881. ? "2'?,. in) Citing Glassinglon v. Thwaites, (k) An if, g 171 ft soq. Fr forms 2 Russ. 458; Whiting v. Rush, 2 Y. & of complaint, mid affidavit for inter- Coll. 546; Graham v. Coape, 9 Sim. 93, pleader, see Vol. 3, pp. 181, 332, 596. 102; s. c., 3 Myl. & Cr. 638; Ellsworth (1) For forms of answers in abate- v. Curtis, 10 Paige, 105. ment, see Vol. 3, pp. 334, 335. (i) Story's Eq. PL, 839. 362 ANSWER. [CHAP. defeats the present action, but does not show that the plaintiff is for- ever concluded. At common law pleadings were divided into dilatory &ndperernpto)-y, and, as a subordinate division, into pleas to the jurisdic- tion of Hie court, in suspension of the action, in abatement of the writ or declaration, or in bar of the action. 1 The code contains no such division or classification of pleas or an- swers. With the exception of those in suspension of the action and in abatement of the writ, the right to interpose the defenses thus classified at common law still exists. Until the revision of 1881 defenses were the same, so far as the manner of pleading and trying them were con- cerned, except that answers in abatement must be sworn to. The ef- fect of a successful defense in abatement was the same, however, as at common law. m Under the present statute, as matters in abatement must be pleaded before pleas in bar, it is more important that the pleader should deter- mine what must be pleaded as matter in abatement, in order to avoid a waiver of the defense by pleading to the merits. 560. Must precede pleas in bar. At common law pleas in abatement must precede pleas in bar." Under the code of 1852 it was much questioned whether matter in abatement must be pleaded alone, or whether it was such a defense to the action as should be pleaded with other defenses and tried at the same time. It was finally held in this state, and most of the other states prac- ticing under the code system, that matter in abatement should be pleaded in the same answer with other defenses, and submitted for trial at the same time. But the revised statute of 1881 provides: "Sec. 365. Pleadings denying the jurisdiction of the court, or in abatement of the action, and all dilatory pleadings, must be supported by affidavit." " The character or capacity,in which a party sues or is sued, and the authority by virtue of which he sues, shall require no proof on the trial of the cause, unless such character, capacity, or authority be denied by a pleading under oath, or by an affidavit filed therewith. An answer in abatement must precede, and can not be pleaded with an answer in bar, and the issue thereon must be tried first and separately. If the issue be found against the answer, the judgment must be that the (1) Stephen PI. 46. (o) Thompson v. Greenwood, 28 Ind. (m) Pomeroy's Rem.. 698. 327; Bond v. Wagner, 28 Ind. 462; (n) Stephen PI. 430. Bliss' Code PI. 345; Pom. Rem., 697, 698. XV.] ANSWER. 363 party plead over, and against him for all costs of the action up to that time."P This amendment of the code takes us back to the common-law rule, and an answer in abatement can not be pleaded with an answer in bar.C 1 561. Must be specially pleaded. Matters in abatement can not be proved under the general denial, but must be specially pleaded. ! And this is true in courts of justices of the peace, where the pni"- tice is much more liberal than in the higher courts, in allowing de- fenses to be proved without being specially pleaded/ 562. Must be verified. Answers in abatement must be verified. This is required by the express terms of the statute. 9 But the answer is not bad on demurrer for want of verification.* The defect must be reached by motion. WHAT MAY BE PLEADED IN ABATEMENT. 563. "Want of jurisdiction of the person. Pleas to the ju- risdiction of the court, and pleas in abatement, were regarded as sepa- rate and distinct defenses at common law," and so recognized in equity." "A plea to the jurisdiction is one by which the defendant excepts to the jurisdiction of the court to entertain the action."" The statute recognizes the distinction between pleas to the jurisdic- tion and pleas in abatement, by providing that both, naming them, shall be verified. x Prior to the revision of the code, the question whether a pleading denying the jurisdiction of the court should be classed as one in abate- luent or not, was of no practical importance, as they must be sworn to and tried in the same manner, whether they were so regarded or not. But the question is of importance now, as if they are pleas in abate- ment they must be first tried. An answer that the court has not jurisdiction of the subject-matter is clearly not an answer in abatement. It goes to defeat the cause of action. But where it is pleaded that the court has not jurisdiction (p) R. S. 1881, 365. Ind. 413; Toledo Agricultural Works (q) Pomeroy's Rem , \ 697. v. Work, 70 Ind. 253; Buchanan . (r) R. S. 1881, I 1460. The Logansport, etc., R. W. Co., 71 (s) R. S. 1881, \ 365; Bradley v. The Ind. 265. Bank of the State of Indiana, 20 Ind. (t) Ante, 503. 628; The Indianapolis, etc., R. R. Co. (u) Stephen PI. 46. v. Summers, 28 Ind. 521: Knoeffel v. (v) Story's Eq. PI., 705 et seq. "Williams, 30 Ind. 1; Wilson v. Poole, (w) Stephen PI. 46. 33 Ind. 443; Beeson v. Howard, 44 (x) R. S. 1881, \ 365. (1) Post, 982. 364 ANSWER. [CHAP. of the person of the defendant, it has been recognized, by our supreme court, as an answer in abatement of the action. y Mr. Iglehart, in his work on Practice, classes answers to the juris- diction, both of the subject-matter and the person of the defendant, as dilatory pleas but not in abatement. 2 And in the revision of McDonald's Treatise on Justices, by the same author, it is expressly stated that an objection that the defendant does not reside in the township and is not suable therein, does not seem to fall within the idea of a defense in abatement.* In the same work it is said that pleas to the jurisdiction may be given in evidence before a justice without being specially pleaded, but pleas in abatement must be specially pleaded and sworn to. b 564. Want of capacity to sue. Want of capacity to sue may be pleaded in abatement. As a cause for demurrer, want of capacity to sue applies to legal disabilities only, such as infancy and the like. But the right to plead in abatement has been extended much farther. Thus, it is held that the question of the right of an executor or ad- ministrator to sue can only be called in question by answer in abate- ment.* 1 And that a corporation has ceased to exist, 6 or that the corporation has no legal existence/ 565. Non-joinder of necessary parties. A non-joinder of necessary parties, either plaintiff or defendant, is cause for abatement. If the action is on a joint contract, and parties are omitted, the objec- tion must be raised by demurrer if the defect appears on the face of the complaint. g But where it does not so appear it should be raised by answer in abatement. 11 It may also be shown by answer that the party suing is not the real (y) Ludwick v. Beckamire, 15 Ind. (d) Nolte v. Libbert, 34 Ind. 163. 198; Keller v. Miller, 17 Ind. 206; (e) The President and Trustees of iJrudy v. Richardson, 18 Ind. 1 ; Storm Hartsville University v. Hamilton, 34 r. Worland, 19 Ind. 203; Michael v. Ind. 500; Meikel v. The German Sav- Thomas, 24 Ind. 72; Grass v. Hess. 37 ings Fund Society, 16 Ind. 181. Ind. 193; Nesbit v. Long, 37 Ind 300; (f) Jones v. The Cincinnati Type Hawley v. The State, 69 Ind. 98; The Foundry Co., 14 Ind 89. State v. Ennis, 74 Ind. 17. (g) Ante, ? 95, 482. (z) Iglehart's Pr., p. 49, g!4. (h) Bledsoe v. Irvin, 35 Ind. 293; (a) Iglehart (McDonald's Treatise), Dillon v. The State Bank, 6 Blkf. 5; p. 60, I 2. Wilson v. The State, 6 Blkf. 212 ; Gil- (b) Iglehart (McDonald's Treatise), bert v. Allen, 57 Ind. 524; Thomas v. p. 58, 3. Wood, 61 Ind. 132. (c) Ante, 479. XV.] ANSWER. 365 party in interest, in which case the answer must state the facts show- ing that the plaintiff is not and who is the real party in interest.' 566. Must show that omitted defendant is still living. If a complaint on a joint contract shows upon its face that all of the par- ties who should be plaintiffs are not joined, it is incumbent upon the plaintiffs suing to show in their complaint an excuse for not joining such parties. But where the non-joinder is of parties who should be defendants, the defendants sued must show by answer in abatement that the omitted parties are such as should be joined. For this reason it has been held that where a plaintiff is omitted the complaint must allege the fact if he is dead, or it will be bad on demurrer, while if it is a defendant who is not joined the plea in abatement must show af- firmatively, not only that he should be joined, but that he is still liv- ing ; and if the complaint does not show on its face that the party is alive, a demurrer will not lie, but an answer in abatement is neces- sary. j 567. Another action pending. Another action pending between the same parties for the same cause of action at the time the suit is commenced is cause for abatement. k But an action pending in another state can not be pleaded. 1 Nor will the pendency of an action in one of the federal courts abate the action, except perhaps where the court is sitting in this state, and the jurisdiction of the court in which the action is pending is con- current with that of the state court. m It can not be regarded as settled whether the pendency- of an action in a Federal court is cause for abatement or not, even where the juris- diction is concurrent, but there are authorities holding that it is suf- ficient." (i) Ante, \\ 483, 564; Smith v. The The Lafayette, etc., R. R Co., 50 Ind. Bank of the State, 18 Ind. 327 Math- 85, 117; Vol. 3, p. 335. ias v. Thomas, 101 Ind. 1 19 ; Vol. 3, p. (1) De Armond v. Bohn, 12 Ind. 607 ; 334. The Eaton, etc., R. R. Co. v. Hunt, 20 (j) Gilbert v. Allen, 57 Ind. 524; Ind. 457; Bradley v. The Bank of the Wilson v. The State, Blkf. '2V2; I>il- State of Indiana, 20 Ind. 528; West Ion v. The State Bank of Indiana, <> Syndic, etc., v. McConnell, 25 Am. Blkf. 5; Levi v. Haverstick, 51 Ind. Dec. 191, and note; ante, 480. 236; Vol. 3, p. 334. (m) Chart's Prac., pp. 52, 53; (k) Smith v. Blatchford, 2 Ind. 184; Bliss' Code PI., f 410. Lee v. Hefley, 21 Ind. 98; Loyd v. (n) West v. McConnell, 25 Am. Reynolds, 29 Ind. 209; The Comm'rs Dec. 191, and note; Iglehart's Prac., p. of Morgan County v. Holman, 34 Ind. 53; People^. Judges, 15 Am. Rep. 195 256; Dawson v. Vaughan, 42 Ind. 395; (27 Mich. 406); Earl v. Raymond, 4 Moore r. Kesler, 59 Ind. 152; The McLean, 233. Board, e.c , of Tippecanoe County v. 366 ANSWER. [CHAP. 568. Can attachment proceeding be pleaded in abate- ment ? In an early case in this state a doubt was expressed whether the pendency of proceedings in attachment could be pleaded in abate- ment. So far as I know the question is still an open one in this state. In other states the authorities are so conflicting as to furnish no settled rule by which we can be governed. In some of the authorities the attachment proceeding is held to be cause for abatement, while in others it is held that it can only be cause for suspending the action until the attachment proceeding is deter- mined. The question is considered by Mr. Drake, in his work on at- tachment, in speaking of the liability of the garnishee, p and many of the authorities in the different states are cited. q It is undoubtedly true that a proceeding in rem, as a general rule, can not be pleaded in abatement of an action in personam, although the object of the two actions is to recover the same debt/ So that the cases in which an attachment proceeding could be pleaded must neces- sarily be of rare occurrence. 569. Misnomer. Misnomer is cause for abatement, whether the defect is in suing by the wrong name, or the omission of the Christian name of the party. 8 The proper practice in case of misnomer was thoroughly considered in the chapter on demurrer, and the authorities will be found cited in that connection. 1 570. Actions prematurely brought. It is sometimes cause for abatement that an action is prematurely brought. It may also be cause for demurrer for want of sufficient facts. Thus a suit on a note may be brought before the note is due. If the fact appears on the face of the complaint it can be reached by demurrer, or the action could be defeated on the merits. There are certain cases growing out of the statutes governing in- surance companiesand other foreign corporations, requiring certain acts to be done to entitle them to do business in this state. The failure to comply with this statute would seem to afford an ample defense against an action by the company where the statute had not been com- (o) Smith v. Blatchford, 2 Ind. 184. (r) People v. Judges, 15 Am. Rep. (p) Drake on Attachment, 700 et 195 ; s. c. 27 Mich. 406. seq. (s) Pedens v. King, 30 Ind. 181; (q) "West Syndic, etc., v. McConnell, Sinton v. The Steamboat R. R. Roberts, 25 Am. Dec. 19J, and note. 46 Ind. 476; Vol. 3, p. 335. (t) Ante, 505. XV.] ANSWER. 367 plied with. But the supreme court has held otherwise in a number of cases. It is held that an answer setting up a failure to comply with the statute is only good as an answer in abatement, on the ground that the action is prematurely brought." And the same rule has been recognized in case of other actions pre- maturely brought/ 571. Death of party. The question of the survivor of actions lias been considered under the head of parties. w " A cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person, and actions for seduc- tion, false imprisonment, and malicious prosecution." 1 Where the cause of action does not survive, the action is entirely defeated by the death of either party ; but where the action survives, it will be discontinued until the proper party is substituted/ The practice in case of the death of either party, is to suggest the death and have the suggestion entered of record. When this is done no further action will be taken in the cause until the proper party is substituted. The statute expressly provides that " no action shall abate by the death or other disability of a party, or the transfer of any interest therein, if the cause of action survive or continue." 2 572. In attachment proceedings. Attachment proceedings must be supported by affidavit. The complaint being sufficient, defects in the affidavit can not be reached by demurrer but may be by motion ; and it has been held that the foundation of the attachment proceed- ings may be controverted by answer in abatement. 8 But the later cases hold that a denial of the allegations of the affida- vit in attachment is an answer in bar of the attachment proceedings, and not in abatement. 1 * (u) The Walter A. Wood, etc., Ma- (y) Ante, % 163, 164. chine Co. v. Caldwell, 54 lu.l. 270; (z) R. S. 1881, 271; Lawson v. Daily v. The National Life Ins. Co., 64 Newcomb, 12 Ind. 439. Irid. 1 ; The Singer Manufacturing Co. (a) Abbott v. Warriner, 7 Blkf. 573; v. Brown, 4 Ind. 548; Toledo Agri- Vorhees v. Hoagland, 6 Blkf. 232. cultural Works v. Work, 70 Ind. 253; (b) The Excelsior Fork Co. v. Luk- The American Ins. Co, v. Wellman, 69 en?, 38 Ind. 438 ; Bradley v. The Bank, Ind. 413. But see Vol. 3, pp. 335, 336, etc., 20 Ind. 528; Maple v. Burnside, 357. 22 Ind. 139; Dunn v. Crocker, 22 Ind. (v) The Tell City Furniture Co. v. 324; Bates v. Spoon er, 45 Ind. 489; Nees, 63 Ind. 245 ; Hayne v. Fisher, 68 Johnston v. Field, 62 Ind. 377; Foster Ind. 158. v. Dryfus, 16 Ind. 158. (w) Ante, \ 64 et seq. (x) R. S. 1881, 282. 368 ANSWER. [CHAP. Where the question is as to the capacity of the plaintiff to sue, or other matters that affect, not the questions of fact presented by the affidavit in attachment, but the right of the plaintiff to maintain the proceeding, admitting the facts to be true, the objection must be made by answer in abatement or motion. c HOW MATTER IN ABATEMENT WAIVED. 573. By failure to demur. Under the statute all matters in abatement, that are made causes for demurrer, are waived by a failure to demur, where the objection appears on the face of the complaint.' 1 Therefore, if the objection appears on the face of the complaint it must be raised by demurrer, and can not be by answer. 6 574. By pleading to the merits. Where the matter in abate- ment does not appear on the face of the complaint it must be pleaded by answer in abatement before pleading to the merits/ And by plead- ing to the merits the right to plead such matter in abatement is waived. 8 . So far as the authorities cited held that answers in abatement and to the merits could not be pleaded together, and that where they were so pleaded the answers in abatement were waived, they have been overruled by later cases. h But, under the Revised Statutes of 1881, as answers in abatement must precede those to the merits, to plead answers in bar and in abate- ment together must have the effect to waive the latter, and the earlier cases on this point must be taken as stating the rule correctly. 575. By going to trial on the merits. Under the rule estab- lished that pleas in bar and in abatement could be pleaded and tried together, it was held that by consenting to a trial on the merits, with- out insisting upon a trial of the issues in abatement, was a waiver of such issues.' And, under the present code, the defendant having pleaded in abatement must require a trial of the issues thus formed or the answer will be waived. 576. Answers in abatement strictly construed. The rule (c) Drake on Attachment, 11, 36, (g) Keller v. Miller, 17 Ind. 206; 115. Carpenter v. The Mercantile Bank, 17 (d) R S. 1881,2 343. Ind. 253; Jones v. The Cincinnati (e) Ante, 519, 520; Busk. Prac. Type Foundry, 14 Ind. 89; Wallace P. 171. Furber, 62 Ind. 126. (f ) K S. 1881, 365. (h) Ante, 560. (i) Wallace v. Furber, 62 Ind. 126. XV.] ANSWER. that the pleading will be most strongly construed against the pleader does not apply generally under our practice. > But the supreme court has held that " all dilatory pleas must be strictly construed. No in- tendment can be taken in their favor. What is not properly averred within them must be held as against them." k ANSWERS IN BAR.(l) 577. The statute. "Sec. 347. TKe answer shall contain: " First. A denial of each allegation of the complaint controverted by the defendant. " Second. A statement of any new matter constituting a defense, counterclaim or set-off, in plain and concise language. " Third. The defendant may set forth in his answer as many grounds of defense, counterclaim and set-off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph and numbered, and clearly refer to the cause of action intended to be answered." l THE GENERAL DENIAL. 578. Object and form. The object of a general denial is to put in issue every material allegation of the complaint. At common law there were different forms of denial applicable to different kinds of ac- tions. Under the code the denial should be the same in every case. No precise form is necessary if it contains an express denial of the al- legations of the complaint. The usual form is given by Mr. Pomeroy: " The defendant for answer to the complaint herein denies each and every allegation thereof." 579. What may be proved under. One of the greatest abuses of the code system of pleading is ,the tendency to plead too much. This is particularly true of pleadings by way of answer. A very great part of the facts pleaded specially can as well be proved under the general denial, and frequently a defendant loses his case in the su- preme court by pleading such facts as would be competent under the general denial. Under the general denial no question of the sufficiency of the plead- ing can arise upon demurrer. (j) Ante, p. 341. (m) Pomeroy's Rem., 613; Vol. 3, (k) The Board, etc.. of Tippecanoe p. 837. County T>. The Lafayette, etc., R. R. (1) For forms of answers in bar, see Co., 50 Ind. 85, 117. Vol. 3, pp. 337-40:2. (1) R. S. 1881,? 347. 24 370 ANSWER. [CHAP. The same facts that could be proved under the general denial, when pleaded specially, give rise to a demurrer which may lead to a ruling that will reverse the case. When this result follows from setting up an unnecessary special defense, the attorney alone is responsible for the consequences. Besides this, it is sometimes important to conceal the facts from the adversary. This can be done under a general denial, while a special answer, wholly unnecessary, can only serve to disclose the facts and give the plaintiff an* unnecessary advantage. This ten- dency toward too much special pleading is the result of uncertainty as to the facts that can be proved under the general denial. No fixed rule can be laid down that will remove this uncertainty. It is one of the most important questions in the practice, and one that arises almost every day. The question is thoroughly considered by Mr. Pomeroy in his able work on Remedies." In stating the rule the author says: "All the possible defenses in bar may be reduced to a few comprehensive classes,, and this classification will assist us in appreciating the distinction be- tween thos% defenses which may be proved under a traverse of the plaintiff's allegations and those which must be pleaded specially as new matter, or matter in confession and avoidance. In respect to contracts, all possible defenses must either (1) deny that there ever was a cause of action, or (2) admit there was once a cause of action, but avoid it by showing subsequent or other matter. The first of these two classes may be subdivided into (a) those which deny that a sufficient contract was ever made, and (6) those which admit that a sufficient contract was originally made, but show that before breach thereof, that is before the time for performance arrived, it was in some manner discharged or ceased to be binding. Similar divisions might be made of the defenses in bar to personal actions for all purposes. From this analysis the following conclusions may be drawn : Defenses in bar to all legal ac- tions on contract, or for tort, may be separated into, first, those which deny that the plaintiff ever had the cause of action alleged, because either no foundation therefor ever existed, or if such foundation ever existed it had been in some manner removed before the cause of action arose therefrom ; and, second, those which admit that a cause of action once existed, but show that it no longer exists." This is, perhaps, as clear a statement of the division of defenses as could be made. Those defenses which deny that the cause of action alleged in the complaint ever existed are properly pleaded by way of general denial, and every fact tending to disprove the cause of action set out in the complaint is competent under the iSsue thus formed. (n) Pomeroy's Rem., ? 642 et seq. (o) Pomeroy's Ttem., 644. XV.] ANSWER. 371 Where the defense admits, or does not controvert, the facts alleged as a cause of action, but depends upon new matter which may amount to a defense, admitting the original cause of action to have existed, must be specially pleaded. By the express terms of the statute, " under a mere denial of any allegation, no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove." p So the real question is whether a given fact, if offered under the general denial, would tend to negative the material allegations of the complaint. If so, the fact should not be specially pleaded.* 1 It must not be understood, however, that a party is confined, under the general denial, to negative proof in denial of the facts stated as a cause of action. Facts independent of those alleged in the complaint, but which are inconsistent therewith and tend to negative the plaintiffs cause of action, are admissible/ Thus, it is held that in an action of replevin the defendant may, under the general denial, prove title in himself, 9 or in a third person.* This is placed upon the ground that the plaintiff, to recover, must prove title in himself, where he alleges title, and the fact of ownership in another is inconsistent with and tends to negative his allegation of title in himself. It is also held that in actions for malicious prosecution, probable cause may be proved under the general denial." And where the action is against a grand juror, he may avail himself of the protection afforded him by law without pleading it specially. v (p) R. S. 1881, 377. 36 N. Y. Superior Ct., 262; Wheeler v. (q) Kimberling v. Hall, lOInd. 407; Billings, 38 N. Y. 263; Greenfield v. t Norris v. Amos, 15 Ind. 365 ; Bingham Mass. Mut. L. Ins. Co., 47 N. Y. 430; v. Kimball, 17 Ind. 396; Watkins v. Bruck v. Tucker, 42 Cal. 346; Mar- Jones, 28 Ind. 12; The Lafayette, etc., shall v. Shatter, 32 Cal. 176; Nelson v. R. R. Co. v. Ehman, 30 Ind. 83 ; The Brodhack, 44 Mo. 596 ; Bledsoe v. Adams Express Co. v. Darnell, 31 Ind. Simms, 53 Mo. 305 ; Vase v. Wood- 20; Shellenbarger v. Blake, 67 Ind. ford, 29 Ohio St. 245; Bliss' Code PI., 75; Reeder v. Maranda, 66 Ind. 485; 327; Schermerborn v. Van Allen, 18 Day v. Wamsley, 33 Ind. 145; Hunter Barb. 29; Pomeroy's Rem., 674 et v. Mathis, 40 Ind. 356; Trogden v. seq.. and cases cited; Farmer v. Cal- Deckard, 45 Ind. 572 ; Kenedy . Shaw, vert, 44 Ind. 209. 38 Ind. 474; Sparks v. Heritage, 45 (s) Sparks v. Heritage, 45 Ind. 66. Ind. 66; Moorman v. Barton, 16 Ind. (t) Kenedy v. Shaw, 38 Ind. 474. 206; Dunn v. Johnson, 33 Ind. 54; (u) Ammerman v. Crosby, 26 Ind. Drover v. Evans, 59 Ind. 454; McGill 451; Hunter v. Mathis, 38 Ind. 356, v. Pressley, 62 Ind. 193. 359. (r) McKyring v. Bull, 16 N. Y. 297 ; (v) Hunter v. Mathis, 40 Ind. 356. Schaus . The Manhattan Gaslight Co., 372 ANSWER. [CHAP. In an action for goods sold and delivered the defendant may show, under the general denial, that the goods were sold to his wife in such a way as not to render him liable. w In these cases, and others of a like kind, it will be noticed that the evidence tends to prove that the plaintiff has no cause of action. They are, therefore, strictly within the rule, and within the statutory provision that only such facts can be proved under the general denial as tend to negative the facts set up as a cause of action. 580. Mitigation of damages. The question whether matters in mitigation must be specially pleaded, or may be given in evidence un- der the general denial, has given rise to much controversy and many conflicting decisions. The earlier cases in New York were clearly to the effect that matters in mitigation might be proved under the general denial, but it seems to be settled in that state, by later cases, that such matter must be specially pleaded. 1 At common law, matters that went merely in mitigation of damages were not regarded as defenses, for the reason that no partial defenses were recognized under the common-law system of pleading. It was the well-established rule, therefore, that the proof was admissible under the general issue and could not be specially pleaded. Under the code the reason for this rule does not exist. The right to plead a partial defense is permitted by the code and enforced by the courts. Not- withstanding this, it is firmly settled by authority in Indiana that mitigating facts or circumstances may be given in evidence under the general denial. y ,, 581. In actions to recover real estate and to quiet title. In actions to recover real estate the general denial is extended to all defenses. " Sec. 1055. The answer of the defendant may contain a denial of each material statement or allegation in the complaint ; under which denial the defendant shall be permitted to give in evidence every de- fense to the action that he may have, either legal or equitable." 2 (w) Day v. Wamsley, 33 Ind. 145. O'Conner, 27 Ind. 69; Swinney v. (x) McKyring v. Bull, 16 N. Y. Nave, 22 Ind. 178; Blickenstaff v. Per- 297; Pomeroy's Rem., g 657, 695 et rin, 27 Ind. 527; Jenkins v. Parkhill, iseq. 25 Ind. 473; Story c. O'Dea, 23 Ind. (y) Smith v. Lisher, 23 Ind. 500; 326; Summons v. Newman, 27 Ind. Henson v. Veach, 1 Blkf. 369; Rich- 508; Wisemun v. Lynn, 39 Ind. 250; ardson v. Barker. 7 Ind. 567; Skillen Allis v. Nanson, 41 Ind. 154. v. Phillips, 23 Ind. 229; O'Conner v. (z) R. S. 1881, \ 1055; Woodruff v. XV.] ANSWER. 373 This statute has been held to apply *also to actions to quiet the title to real estate. 8 Where the defendant claims title and desires to have his own title quieted as against the plaintiff, he must set up his title by way of counterclaim and ask for affirmative relief. b The statute can not be construed under the code as it now stands, requiring answers in abatement to be first tried, to extend to such' defenses. It must be confined to defenses going to the merits of the cause of action. WHAT THE GENERAL DENIAL ADMITS. 582. Capacity of plaintiff to sue. It seems like a contradic- tion in terms to say that any matter can be admitted by a general de- nial, but the authorities so state the rule. It would, perhaps, be better to say that such matters are not put in issue by the general denial. As a general denial only puts in issue such matters as are alleged in the complaint, it is manifest that, under the code, where the facts showing the capacity of the plaintiff to sue need not be alleged, d the want of capacity to sue can not be proved under the general denial, and, in effect, the capacity to sue is admitted. 6 583. Execution of -written instrument. The statute provides : " Sec. 364. When a pleading is founded on a written instrument, or such instrument is therein referred to, or when an assignment in writ- ing of such instrument is specially alleged in a pleading, such instru- ment or assignment may be read in evidence on the trial of the cause without proving its execution, unless its execution be denied by plead- ing under oath, or by an affidavit filed with the pleading denying the execution. And when a written instrument or assignment is so pleaded or referred to, proof of the names of the makers, assignors, obligors, assignees, payees or obligees, shall not be necessary unless the Garnor, 20 Ind. 174; Vail v. Halton, (e) Downs v. McCombs, 16 Ind. 211; 14 Ind. 344; Rogers v. Place, 29 Ind. Jones v. The Cincinnati Type Foundry, 577,581; Brown v. Freed, 43 Ind. 253; 14 Ind. 89; Hubbard v. Chappel, 14 Maxwell v. Campbell, 45 Ind. 360; Ind. 601 ; Heaston v. The Cincinnati, Jenkins v. Radcliff, 46 Ind. 437. etc., R. R. Co., 16 Ind. 275; Harrison (a) Graham v. Graham, 55 Ind. 23, v. The Martinsville, etc., R. R. Co., 16 28; R. S. 1881, gg 1070, 1071. Ind. 505; Lawson v. Sherry, 21 Ind. (b) The Jeffersonville, etc., R. R. 363; The Board, etc., of Bartholomew Co. v. Oyler, 60 Ind. 383; Marat v. County v. Bright, 18 Ind. 93; The Jef- The Geriaania, etc., Building Ass'n, fersonville R. R. Co. v. Hendricks, 26 54 Ind. 37. Ind. 228; Hardy v. Merriwether, 14 (c) Wilson v. Poole, 33 Ind. 443. Ind. 203. (d) Ante, \\ 368-371. 374 ANSWER. [CHAP. same shall be denied by a pleading under oath, or by an affidavit filed as aforesaid." f This section of the code is amended by the revision of 1881. Under the code of 1852, the written instrument, whether the foundation of the action, or referred to in the pleading or not, must be one purporting to be executed by one of Hie parties ; and the present stat- ute contains no such limitation, but applies to written instruments and assignments generally. Under the original section, the denial of the execution might be made by affidavit at any time before the commencement of the trial. 8 Now the affidavit must be filed until the pleading. The present section provides thut the names of parties to such instru- ments or assignments need not be proved unless denied under oath. The original section contained no such provision. The general denial, in this class of cases, only puts in issue the exist- ence of the written instrument, which must be produced on the trial, or sufficient excuse shown for its non-production ; h but when produced its execution need not be proved unless denied under oath.' Under this section the defendant may plead non est factum in terms, and, if sworn to, the answer puts in issue the execution of the instru- ment ; but it has been held sufficient to plead the general denial sworn to, which puts in issue not only the execution of the instrument but every other material allegation in the complaint.J And it has been held sufficient to deny the delivery of the instrument under oath. k While the present statute has so amended the code of 1852 as to extend its terms to written instruments executed by persons not parties to the action, the law has not been changed in this respect. Under the old code the rule was limited to instruments purporting to be executed by one of the parties to the suit ; but the statute of 1843 was general in its terms, and the supreme court has held, in a number of cases, that (f ) R. S. 1881, 364 ; Vol. 3, p. 338. Walser, 22 Ind. 73; Evans v. Southern (g) R. S. 1876, p. 75, 80. Turnpike Co., 18 Ind. 101; Stebbins v. (h) Fosdick v. Starbuck, 4 Blkf. Goldthwait, 31 Ind. 159; Price v. The 417; Breedlove v. The Martinsville, Grand Rapids, etc., R. R. Co., 18 Ind. 3tc., R. R. Co., 12 Ind. 114. 137; Coen v. Funk, 18 Ind. 345; Brad- (i) "Woollen v. Whitacre, 73 Ind. ley v. The Bank of the State of In- 198; Unthank v. The Henry County diana, 20 Ind. 528; Hoefgan v. Harri- Turnpike Co., 6 Ind. 125; Russell v. son, 7 Ind. 594; Hicks v. Reigle, 32 Drummond, 6 Ind. 216; Pursley v. Ind. 360. Morrison, 7 Ind. 356; Denny v. The (j) Evans v. The Southern Turn- Indiana, etc., R. R. Co., 11 Ind. 292; pike Co., 18 Ind. 101. Belton v. Smith, 45 Ind. 291 ; The (k) Ketcham v. The New Albany Peoria Marine and Fire Ins. Co. v. and Salem R. R. Co., 7 Ind. 391. XV.] ANSWER. 375 \ the section of the statute of 1843, relating to this subject, was in force after the enactment of the code of 1852.' And the same was held with reference to the proof of the names of the parties to such instruments." 1 It will be seen, by these authorities, that where a note or other in- strument is executed or assigned to a party, by the initials of his name, or by a name different from that in which he sues, or where the firm name of a partnership is given, no proof is necessary to connect the plaintiffs with the transaction by proving that they are the persons therein named, unless the fact is denied under oath. The amendments made in the section under consideration have been pointed out because tlje effect of the code is changed ; but the law on these subjects is the same, for the reason that the provisions of the re- vision of 1843 are carried into the new code, and they were held by the supreme court to have been continued in force by section 802 of the code of 1852." The present statute contains no provision by which former statutes can thus be kept alive. 584. Executors, administrators and guardians, need not deny execution of written instrument under oath. The pres- ent code provides that executors, administrators, or guardians need not deny the execution of an instrument, or the assignment thereof, under oath, but the same must be proved as if it were denied. p This was held to be the law under the code of 1852, on the ground that the sec- tion as originally enacted applied to such instruments only as were ex- ecuted by one of the parties to the action, and therefore, as to execu- tors, administrators, or heirs of such party, the common-law rule prevailed, and the execution of the instrument must be proved, whether its execution was denied under oath or not. q The amendment of the code, therefore, does not change the law in tlxis respect, but makes the section conform to the decided cases. The (1) R. S. 1843, p. 711, 116; Patter- (n) R. S. 1876, p. 314, 802. son v. Crawford, 12 Ind. 241 ; Berry v. (o) R. S. 1881, 1291. Bolan, 13 Ind. 259; Belton v. Smith, (p) R. S. 1881, 364. 45 Ind. 291. (q) Riser v. Snoddy, 7 Ind. 442; (m) R. S. 1843, p. 711, 218; Aber- Mahone, Adm'r v. Sawyer, 18 Ind. 73; nathy v. Reeves, 7 Ind. 306; Rees v. Martin v. Asher's Adm'r, 25 Ind. 237; Simons, 10 Ind. 82; Groves v. Train, Barnett's Adm'r v. The Cabinet Muk- 11 Ind. 198; Hauser v. Hayes, 11 Ind. ers' Union, 28 Ind. 254; Cawood's 368; Hauser v. Smith, 13 Ind. 532; Adm'r v. Lee, 32 Ind. 44; Belton v. Farley v. Harvey, 14 Ind. 377; Napier Smith, 45 Ind. 291; Myers, Ex'r, v. v. Mayhew, 35 Ind. 276. The State, 47 Ind. 293. ANSWER. [CHAP. denial may be sworn to by a party who would not be competent to tes- tify as a witness on the trial, as in case of an action by an administrator on a promissory note given to the decedent/ 585. Existence of corporation plaintiff. The existence of a corporation suing as such is not put in issue by the general denial. 9 And the plaintiff will be presumed to be a corporation where the name in which the action is brought imports it to be such. 1 The rule that the existence of a corporation can only be put in issue by a verified answer does' not apply where the corporation sues upon a subscription made before the organization of the corporation. In such cases the proper organization of the corporation is a condition precedent to the right to recover on the subscription, and must be alleged in the complaint and proved on the trial under the issue formed by the gen- eral denial.-" NEW MATTER SPECIAL ANSWERS. 586. "What is new matter. It is the present purposed, consider the subject of answers which are strictly defenses to the cause of action. New matter may amount to a set-off, which is not strictly a defense to the plaintiffs cause of action, or to a counterclaim, which is an inde- pendent cause of action on the part of one or mor. Hill, Ind. 359. 43 Ind. 157; Jones v. The Cincinnati (s) The Adams Express Co. v. Hill, Type Foundry Co., 14 Ind. 80; Will- 4?> Ind. 157; The Indianapolis Furnace iams v. The Academical Ass'n, 26 Ind. and Mining Co. v. Herkimer, 46 Ind. 310; O'Donald v. Thu Evansville, etc., 142; Cicero Hygiene Draining Co. v. R. R. Co., 14 Ind. 259 ; Stein v. Indian- Craighead, 28 Ind. 274; Jones v. The apolis, etc., Ass'n, 18 Ind. 237; The Cincinnati Type Foundry Co., 14 Ind. Indianapolis Sun Co.' v Horrell, 53 89; Heaston v. The Cincinnati, etc., R. Ind. 527; Cole v. The Merchants' R. Co., 16 Ind. 275; The Board, etc.. Hank, 60 Ind. 350. of Bartholomew County v. Bright. 18 (u) Ante, \ 371; Chance r, The In- Ind. 93; Wert v. The Crawfordsvillc, dianapolis etc.. Gravel Road Co., 32 etc., Turnpike Co., 19 Ind. 242; Wiles Ind. 472; Wert v. The Crawfordsville, v. The Trustees of Phillips' Church; 63 etc., Turnpike Co., 18 Ind. 242. Ind. 206. (v) Pomeroy's Rem., 593. XV.] ANSWER. 377 come by independent matter constituting a defense, admitting the facts stated in the complaint to be true. w The rule at common law was that such a plea, which was termed a plea by way of confession and avoidance, must " give color" by con- fessing the allegations contained in the declaration, either in terms or by implication, to be true. 1 And it was held that a pleading purporting to be by way of confes- sion and avoidance, which did not import a confession of the adverse allegations, was insufficient. y This rule should be adhered to in our practice. But while some of the authorities seem to recognize the rule under the code, it is neither adhered to in practice nor enforced by the courts. It is not required that the answer in such case should in express terms confess the truth of the facts averred in the complaint. It is enough if they are not denied. z The statute provides that " all defenses, except the mere denial of the facts alleged by the plaintiff, shall be pleaded specially." a The distinction between the denial and new matter is clearly stated by Mr. Pomeroy : " The overwhelming weight of judicial opinion has with almost complete unanimity agreed upon the principle which dis- tinguishes denials from new matter, and determines the office and func- tion of each. The general denial puts in issue all the material aver- ments of the complaint or petition, and permits the defendant to prove any and all facts which tend to negative those averments, or some one or more of them. Whatever fact, if proved, would not thus tend to contradict some allegation of the plaintiff's first pleading, but would tend to establish some circumstance, transaction, or conclusion of fact not inconsistent with the truth of all those allegations, is new matter. It is said to be new because it is not embraced within the statements of fact made by the plaintiff; it exists outside of the narrative which he has given ; and proving it to be true does not disprove a single aver- ment of fact in the complaint or petition, but merely prevents or destroys the legal conclusion as to the plaintiff's rights and the defendant's du- ties, which would otherwise have resulted from all those averments ad- mitted or proved to be true." b The new matter required to be specially pleaded, although it in effect admits the truth of the allegations of the complaint, does not neces- sarily admit that the plaintiff has OP ever had a cause of action. (w) McCarty v. Roberts, 8 Ind. 150. (z) Bliss' Code PL, $ 340, 341. (x) Stephen PI. 200. (a) R. S. 1881, 356. (y) Stephen PI. 200. (b) Pomeroy's Rem., 691. 378 ANSWER. [CHAP. The allegations of the answer may show such a state of facts as would destroy the plaintiff's original cause of action, as in case where the new matter pleaded shows the contract to have been illegal, or that the promise of the defendant was obtained by duress ; therefore, the term " new matter" does not mean matter occurring since the cause of action alleged in the complaint arose. But the answer may show that, by reason of subsequent occurrences, the plaintiff's right of action, admitting it to have existed originally, has ceased to exist, as in case of a release, payment, or the like. MANNER OF STATEMENT. 587. Defenses must be separately pleaded and numbered. The answer, like the complaint, will be subject to objection, on the ground of duplicity. The statute expressly provides that each defense "shall be distinctly stated in a separate paragraph, and numbered, and clearly refer to the cause of action intended to be answered." c Where there are several paragraphs of complaint, and different de- fenses are pleaded, each paragraph of the answer must designate the paragraph of complaint to which it is addressed. A cause of action must not be confessed and avoided and denied in the same paragraph.* 1 588. Answer may go to part of paragraph of complaint. It is not necessary that a paragraph of answer setting up new matter should, in all cases, be a bar to the entire cause of action to which it is pleaded. The answer may be addressed to a part of the cause of action, and be pleaded as an answer to such part. Such pleading is authorized under the code, but the answer must clearly point out that part of the comp'laint which it purports to answer, and be confined, in terms, as a defense to such part only. If the answer professes to meet the whole complaint, or the whole of any one paragraph of the complaint, when it amounts to but a par- tial answer, it will be subject to demurrer. 6 The number of authorities cited will show how frequently the un- (c) R. S. 1881, 347, sub. 3; Rose v. 65; McClintic's Adm'r v. Cory, 22 Hurley, 39 Ind. 77; The State v. Nave, Ind. 170; Summers v. Vaughan, 35 69 Ind. 108. Ind. 323 ; Trisler v. Trisler, 38 Ind. (d) Woollen tr. Whitacre, 73 Ind. 282; Sanders c. Sanders, 39 Ind. 207; 198. Alvord v. Essner, 45 Ind. 156; Reid v. (e) Conwell v. Finnell, 11 Ind. 527; Huston, 55 Ind. 173; Sanders' Adm'r, Smith v. Baxter, 13 Ind. 151; Webb v. v. Loy, 61 Ind. 298; Lash v. Randell, Deitch, 17 Ind. 340; Webb v. Deitch, 72 Ind. 475; Frazee v. Frazee, 70 Ind. 17 Ind. 521; Dayhuff v. Saville, 18 411. Ind. 384; McDougle v. Gates, 21 Ind. ANSWER. 379 wary pleader loses the benefit of a good answer to a part of the com- plaint by pleading to the whole cause of action. The answer must bo sufficient to bar so much of the complaint as it professes to answer, or it will be insufficient. 589. May confess and avoid 'a part and deny a part of complaint in same paragraph. The rule is firmly settled that the same paragraph of answer should not both confess and avoid and deny the same allegations in the complaint. This would be a plain violation of the rule that the defenses must be separately stated and numbered. It frequently occurs in practice, however, that the defend- ant may deny and disprove some of the facts stated as a cause of ac- tion, while, as to others, they can only be met by matter in avoidance. Where this occurs, and both the facts that are true and those not true are material to the cause of action, the defendant may, in the same paragraph, set up matter in avoidance of that which is true and deny that which is false. This is necessary in order to constitute a defense to the entire cause of action, and is in fact but a single defense. But where the general denial is pleaded it necessarily puts in issue all mat- ters in the complaint that are not true, and the answer in avoidance may be pleaded to such part as may be true. This would meet the en- tire complaint, but the safer practice is to meet the whole complaint in the one paragraph by denying a part and pleading new matter as to the residue. Where this is done, however, the pleader must confine the matter in avoidance, in terms, to that part of the complaint it is intended to meet, and the denial should go in general terms to every other material allegation of the complaint/ 590. Answer must state facts. The rule that pleadings must state facts, applies to the answer as well as the complaint. The suffi- ciency of the answer must be determined by the facts alleged, and it can not be aided by the averment of conclusions of law. It should be direct and positive, and not argumentative. 591. Defenses may be inconsistent. The question whether a defendant may. plead several defenses that are inconsistent with each other is not well settled in the different states. In those states where the answer must be verified it results, or should necessarily result, that the defenses must be consistent. This was the rule in equity. The reason for requiring the answers in equity to be truthful is ob- vious. They were in many cases obtained to be used as evidence, and required to be made under oath. It must be conceded that the weight (f ) Iglehart's Prac , p. 64, 52. But see Ponder v. Tate, 76 Ind. 1. 380 ANSWER. * [CHAP. of reason, if not of authority, is in favor of the rule that defenses should not be contradictory. The object of the code is to arrive at the real matter of contro- versy between the parties, and this should be done by requiring that a defendant shall not plead one defense that can only be established by disproving another. 8 But the language of the statute authorizing the joinder of de- fenses is very broad in its terms, and contains no such limitation as would prohibit the joinder of such defenses as are inconsistent, 11 and the Supreme Court of Indiana, as well as the courts of last resort in other states, have given full force to the language of the statute, thereby authorizing inconsistent defenses to be joined.' Mr. Pomeroy, in his work on Remedies, says: "Assuming that the defenses are utterly inconsistent, the rule is established, by an over- whelming weight of judicial authority, that, unless expressly prohib- ited by the statute, they may still be united in one answer. It follows that the defendant can not be compelled to elect between such defenses, nor can evidence in favor of either be excluded at the trial on the ground of inconsistency. " j This must be regarded as the settled rule in this state. 592. Each paragraph must be good within itself. The rule that each paragraph of a pleading must be good, without any aid from other parts of the pleading, is as applicable to the answer as to the com- plaint. Each paragraph must be good, standing as a separate and dis- tinct pleading, as an answer to so much of the complaint as it professes to answer. 11 593. Equitable defenses. One of the results of the provision of the code abolishing the distinction between actions at law and suits in equity, as regards practice and pleading, is that a defendant may in- terpose aii equitable defense to a common-law cause of action. And, by the express provision of the statute, such defenses may be united (g) 1 Bates' Ohio PI. and Par. 140; Smith, 50, 52; Hollenbeck v. Clow, 9 Bliss' Code PI., gg 342, 343, 344. How. Pr. 289; Butler . Wentworth, 9 (h) R. S. 1881, 347. How. Pr. 282; 17 Barb. 649; Smith v. (i) Ante, 379; Vail v. Jones, 31 Wells, 20 How. Pr. 158, 107; Crawford Ind. 467; Weston v. Lurnley, 33 Ind. v. Adams, Stanton's Code (Ky.), 91. 486. But . K ee Hamar v. Dimmick, 14 But see Sanders ;-. Farrell, 83 Ind. 28, Ind. 105; Sanders v. Farrell, 83 Ind. 28. for a dicta that where two inconsistent (j) Pomeroy's Hem., \ 722, citing defenses are pleaded, one or the other Springer v. Dwyer, 50 N. Y. 19; Buhne should be rejected on motion. v. Corbitt, 43 Cal. 264; Bell v. Brown, (k) Knarr c. Conoway, 42 Ind. 260; 22 Cal. 671; Wilson v. Cleveland, 30 Potter v. Earnest, 45 Ind. 416. Cal. 192; Mutt v. Burnett, 2 E. D. XV.] ANSWER. 381 with such as would, under the old practice, have been common-law de- fenses. 1 It has been held, in some of the states, that a defendant can not avail himself of facts that would entitle him to relief in equity as a defense; but must, to entitle him to any remedy, ask for and obtain affirmative relief. This is simply to say that an equitable defense can not be interposed as a defense, but must be resorted to as a counter- claim. This question is thoroughly considered, both by Mr. Bliss and Mr. Pomeroy ; m and, while they differ as to the effect of the decided cases, the conclusion is reached, by both; that the facts which would entitle a party to equitable relief may be used as a defense without asking or receiving affirmative relief. This must be so, in this state, by the express provision of the statute. But, while this is true, it must not be overlooked that the cases in which an equitable right can be used as a defense must be very rare. Under the code, where the party must ask affirmative relief, as in case of an action upon contract, where the defendant sets up a mistake, the relief can not be obtained by way of defense. This would consti- tute a counterclaim and not a defense. In this class of cases the equitable right being essentially affirmative in its character, the ques- tion arises whether the matter entitling the defendant to affirmative re- lief can be used, simply as a defense, which is negative in its character. Mr. Pomeroy, in commenting on this question, says: " Express as Is the language of the statute,. and well established as is the juridical na- ture of 'defense' in general, the doctrine has been strenuously main- tained, and is supported by the decisions of respectable courts that a defendant can not avail himself, as a defense, of facts entitling him to equitable relief against the plaintiff's legal cause of action ; unless he does it by demanding and obtaining that specific remedy which, when granted, destroys the cause of action ; in other words, he can not invoke the right as long as he treats it and relies upon it as a defense.* . . . "The error of this doctrine has already been demonstrated. A de- fense is a negative resistance, an obstacle, a something which prevents a recovery, whether it be equitable or legal. If every equitable de- fense in order to be available must consist in an affirmative recovery of specific relief against the plaintiff, or at least in the right to recover such relief, if the defendant choose to enforce it, for exactly the same (1) R. S. 1881, 347. Hicks v. Shepard, 4 Lana. 335, 337; (m) Bliss' Code PI., 351, and note ; Cramer v. Benton, 60 Barb. 216; Ken- Pom. Rem., 90, 91. yon v. Quinn, 41 Cal. 325 ; Lombard v. (n) Citing Fallett v. Heath, 15 Wis. Cowham. 34 Wis. 486, 492; Dewey r. 601; Conger v. Parker, 29 Ind. 380; Hoag, 15 Barb. 365. 382 ANSWER. [CHAP. reasons and with exactly the same force, it might be said that every legal defense in order to be available must consist of an offset or coimterclain." The fallacy of this reasoning must be apparent at a glance. It ob- literates all distinction between a defense and counterclaim. If the matter set up entitles the defendant to affirmative relief, he becomes a plaintiff, and his pleading can not be regarded in any sense as an answer. There can be no controversy that an equitable defense can be interposed to a legal cause of action, but the difficulty is to de- termine whether the matter set up is a defense or a counterclaim. This may be illustrated by the familiar case of the correction of a mis- take. The plaintiff sues upon a written instrument, that upon its face entitles him to recover. The defendant sets up a mistake in the instru- ment, which, if corrected according to the actual intention of the parties, would destroy the plaintiff's cause of action, or furnish the defendant an entire or partial defense. The right to correct the mis- take is clearly equitable, but is it a defense f Before the instrument can be used as a defense it must be corrected. The right to correct the mistake constitutes a cause of action in favor of the defendant, " aris- ing out of and connected with the cause of action " of the plaintiff. As such, it is clearly a counterclaim. It is not enough for the de- fendant to prove the mistake ; he must ask to have the instrument corrected, and there must be an affirmative judgment in his favor cor- recting the mistake. p It is held in this state that the plaintiff may, in the same complaint, correct a written instrument, and recover judgment upon it as cor- rected.' 1 But a different question arises where the defendant asks to correct a mistake and use the written instrument, when corrected, as a defense. There are numerous authorities in this state holding that the same pleading can not perform the double office of an answer and cross- complaint. 1 ' When this well-established rule is applied to the case of the correc- tion of a mistake in a written instrument, it is difficult to see how the defendant can, in the same pleading, obtain the affirmative relief, and use the instrument as a defense. There is no way by which these two (o) Pomeroy's Kem., g 91. (q) Ante, 330; Riggsby ' v. Trees, (p) Conger v. Parker, 29 Ind. 380; 21 Ind. 227; Khode v. Green, 20 Ind. Knarr v. Conaway, 42 Ind. 260; King 83; King v. The Enterprise Ins. Co., v. The Enterprise Ins. Co., 45 Ind. 45 Ind. 43, 59; Leedy v. Nash, 67 Ind. 43,58; Mason v. Mason, 102 Ind. 38; 311. Vol. 3, pp. 407, 408. (r) Post, 677. XV.] ANSWER. 33 lines of decisions can be reconciled with each other; but, the two con- clusions, however inconsistent, are well established by authority in In- diana. The effect of these rules is that the defendant may, as matter of defense, aver and prove a mistake in the instrument sued on by the plaintiff, but he must, at the same time, ask for and receive affirmative relief by the correction of the mistake. Under the code, the plaintiff may recover the possession of real es- tate under an equitable title ; " and where the plaintiff seeks to recover upon a legal title, he may be defeated by an equitable title and right u> possession thereunder by the defendant. 1 But where the defendant can only recover through the granting of affirmative relief, he must set up the matter entitling him thereto, and ask for such relief." WHAT MUST BE PLEADED SPECIALLY, AND HOW PLEADED. 594. Payment. It is not intended to give all of the defenses that must be specially pleaded. This would be impossible. But the at- tempt will be made to give enough to illustrate fully what kinds of de- fenses fall within the rule that new matter must be specially pleaded. The defense of payment is new matter, and must be specially pleaded. It has been held, in some cases, that where the complaint contains such averments of non-payment that the traverse of them is equivalent to an allegation of payment, the general denial is sufficient to authorize the proof of payment.' But this is not the law in this state. Although the plaintiff must allege in his complaint that the debt is unpaid, he is not bound to prove the allegation, nor can the defendant disprove it, without a special answer of payment. w But a plea of payment may be sustained by proof of the delivery of property or any thing which the creditor accepted as payment. 1 And proof of partial payment is competent under the general plea. y 595. What plea of payment must contain. Payment may (s) Burt v. Bowles, 69 Ind. 1. Baker v. Kistler, 13 Ind. 63; Louden (t) Hampson v. Fall, 64 Ind. 382; v. Birt, 4 Ind. 566; Tilford v. Roberts, Burt v. Bowles, 69 Ind. 1 ; Graham v. 8 Ind. 254; Hart v. Crawford, 41 Ind. Graham, 55 Ind. 23. 197. (u) Hampson v. Fall, 64 Ind. 382. (x) Louden v. Birt, 4 Ind. 566; (v) Pomeroy's Kern., \ 700; Quinn "VVok-olt v. Ensign, 53 Ind. 70; Tilford v. Lloyd, 41 N. Y. 349; Bliss' Code PL, v. Roberts, 8 Ind. 254 ; Hart v. Craw- $ 357, 358. ford, Ex'r, 41 Ind. 197. (w) Hubler v. Pullen, 9 Ind. 273; (y) Ballard v. Turner, 08 Ind. 127. 384 ANSWER. [CHAP. be alleged in^general terms, without stating the amount, the date of payment, or the person to whom payment was made. 7 - It was held, iii an early case, that the answer must show to whom the payment was made, 8 but the later cases are the other way. It is not sufficient to aver a payment of all that was demanded at a time prior to the bring- ing of the suit, as the amount demanded may have been less than was due. b The answer should allege a payment in full before the bringing of the action. While the defendant is not bound to allege in his answer to whom payment was made, he may do so, but if the averment is that the payment was made to some person other than the holder of the note, the answer must show that such person had authority to re- ceive payment, and the facts showing such authority must be stated. Where payment is alleged to have been made to a former holder, the answer must show that such payment was made before notice of the indorsement. d 'It is not always necessary, however, that the defendant should either allege or prove that the party to whom payment was made was legally entitled to receive the same. Where the payment has been made in good faith to the holder of a note made payable to bearer, the defend- ant will be protected, although the title of the holder may be invalid. The rule is thus stated : " There are some cases in which payment to a wrongful holder is protected, and others in which it is not. If a bill or note payable to bearer, either originally made so or become so by an indorsement in blank, be lost or stolen, a bona fide holder may com- pel payment. Not only is the payment to a bona fide holder protected, but payment to the thief or finder himself will discharge the maker or acceptor, provided such payment were not made with knowledge or suspicion of the infirmity of the holder's title, or under circumstances which might reasonably asvakeu the suspicion of a prudent man. For it is a general rule that, where ooe of two innocent persons must suffer from the acts of a third, he who has enabled such third person to oc- casion the loss must sustain it. And, supposing the equity of the loser aud payer precisely equal, there is no reason why the law should in- terpose to shift the injury from one innocent man upon another. But if such a payment be made under suspicious circumstances, or without reasonable caution, or out of the usual course of business, it will not, (z) Wolcott v. Ensign, 53 Tnd. 70; (c) Maynard v. Black, 41 Ind. 310. Demuth v. Daggy, 26 Ind. 341. (d) Helms v. Sisk, 8 Rlkf. 503; (a) Nill v. Comparet, 15 Ind. 243. Woodward v. Elliott, 13 Ind. 516. (b) Toledo Agricultural Works v. Work, 70 Ind. 253. XV.] ANSWER. 385 as between all parties, and for all purposes, discharge, the payer."* But where the facts are known, payment must be made to the real proprietor or his agent. f (l) 596. Payment after suit brought. Payment made after the suit is brought can not be pleaded in bar of the action. It has been held that such payment may be proved in mitigation of damages." But the defendant may plead payment of the debt after the suit i~ brought, not in bar of the action, but in bar of the ''further mainten- ance of the action." h Such an answer could not go in bar, for the reason that an answer in bar must relate to the time the action was commenced. (2) 597. Payment of less than is due. As a rule, the payment of less than is due the creditor, will not discharge the debt, although the creditor may consent at the time to accept the amount in full satis- faction of his demand, and give a receipt in full. 1 But this rule is subject to exception.- 1 The rule, with its exceptions, is stated in the case of Fensler v. Prather, Downey, J. : " Payment of a smaller sum in satisfaction of a greater liquidated debt, only operates as a discharge pro tanto, and can not, in law, discharge the whole debt without some valid consideration for abandoning the residue. But payment of a smaller sum may amount to a discharge of a larger debt, where it is made under a valid agreement to that effect ; as where it is agreed to be paid at an earlier day, where it is agreed to be paid by a third party, or where it is paid as a composition for the debt under an arrangement between the debtor and his creditors. Payment of a smaller sum in satisfaction of a larger amount claimed for an unliquidated demand may operate as a valid discharge ; so payment of a smaller sum under an agreement to aban- don a defense to an action, and pay costs, may be pleaded in satisfaction of a larger demand." k Where the amount paid is less than the debt, the fact showing that it was paid under such circumstances as to amount to a discharge may (e) Byles on Bills, 6th ed. p. 343; (i) Marker's Adm'r v. Spitler's Vanarsdallr. Watson, 65 Ind. 176, 180. Adm'r, 28 Ind. 488; Maxwell v. Day, (f) Woodwards. Elliott, 13 Ind. 516. 45 Ind. 509. (g) Bischoff v. Lucas, 6 Ind. 26; (j) Fenslrr v. Prather. 43 Ind. 119, The Bank v. Brackett, 4 N. H. 557. 122; Maxwt-il r. Day, 45 Ind. 509; (h) Herod v. Snyder, 61 Ind. 453. Ogborn v. Hoffman, 52 Ind. 439. (1) For form of answer, see Vol. 3, (k) Citing Leake Law of Con. 474, p. 390. 475. (2) For form of answer, see Vol. 3, p. 391. 25 386 ANSWER. [CHAP. be proved under the general plea of payment, but the facts may be specially pleaded. (1) 598. Accord and satisfaction. Accord and satisfaction is new matter, and must be specially pleaded. It is in the nature of payment. The answer of accord and satisfaction sets up a new contract, and its performance in discharge of the original contract. 1 It is not sufficient to allege the new contract or the accord as it is termed. The answer must show satisfaction by alleging the perform- ance of the new contract by the defendant." 1 It was held in some of the earlier cases in this state, that in actions of assumpsit, accord and satisfaction could be proved under the general denial." But this is not the rule under the code, as it is not matter which tends to negative the allegations of the complaint. The distinction between payment and accord and satisfaction has been almost entirely obliterated by the decided cases in Indiana. The question whether under a plea of payment a defendant may prove an accord and satisfaction has not, it is believed, been directly decided. It has been held, however, that payment may be made in any thing that the creditor will accept in payment. p What is this but accord and satisfaction ? It has been held in a later case that an answer setting up that a debt had been paid ' ' in goods, wares, and merchandise, which was so received," was good, both as an answer of payment and accord and satisfaction. q It is difficult to see how one answer could be sufficient both as a plea of payment and accord and t satisfaction. Payment is a performance of the original contract, while accord and satisfaction is the making of a new contract and a performance thereof. The latter must have all the elements of a new and independent contract/ The cases holding that payment may be made in any thing that the creditor will accept does not confine the time of the agreement to the original contract. If the creditor, as a part of the original contract, agrees to take something other than money in payment, the delivery (1) For form of answer, see Vol. 3, p. 339. (1) 2 Par. on Con., p. 681. (o) R. S. 1881, gg 356, 377; Bliss' (m) Woodruff v. Dobbins, 7 Blkf. Code PI., 352; Pomeroy's Rem , ? 71'2. 582; Deweese v. Cheek, 35 Ind. 514; (p) Ante, 594; Louden v. Birt, 4 Coquillard's Adm'r v. French, 19 Ind. Ind. 566; Tilford v. Roberts, 8 Ind. 274; Harbor v. Morgan, 4 Ind. 158; 254. Prather v. The State Bank, 3 Ind. 356. (q) Hart v. Crawford, EXT, 41 Ind. f n) Burge v. Dishman, 5 Blkf. 272; 197; Wolcott v. Ensign, 53 Ind. 70 Page v. Prentice, 7 Blkf. 322; Louden (r) 2 Parsons' Contracts, p. 681. v. Birt, 4 Ind. 666. XV.] ANSWER. 387 of the property agreed to be accepted should be sufficient as a pay- ment, and "a tender of the same would be a sufficient tender. But where the creditor agrees, at a subsequent time, to accept something else in payment, when by his contract he is entitled to demand pay- ment in money, it is an accord, and where the property is delivered and accepted it is an accord and satisfaction and not a payment. The two are so essentially different that proof of one should not be per- mitted under a plea of the other. As to what will amount to an accord and satisfaction, see the cases cited in the foot-note. 8 Where the amount due upon the debt is liquidated, and there is no controversy between the parties as to the amount due, a payment of a less amount does not amount to an accord and satisfaction, although the creditor may agree to accept the lesser amount and actually re- ceive the same. But where there is a dispute about the amount due, and the creditor accepts less than is actually due to avoid litigation, or where the amount is paid before the debt is due, or some other consideration of loss to the debtor or benefit to the creditor is the cause for accepting the smaller amount, it is sufficient and will discharge the debt. 1 599. Arbitration and award. Arbitration and award must be pleaded specially. 11 The arbitration may be a statutory or common-law arbitration, the difference being that to comply with the statute the parties must make the submission a rule of some designated court, and the submission must be by an instrument in writing. 7 Where the answer attempts to set up a statutory arbitration, the facts showing the submission, and other steps taken to be in accordance with the requirements of the statute, must be stated. The submission and award should be made part of the answer, whether the arbitration is one under the statute or at common law. If, however, the answer is pleaded as a statutory arbitration, and fails to allege such facts as (s) Neil v. Comparet, 15 Ind. 243; Stone v. Lewman,28 Ind. 97; Markell's Adamson v. Rose, 30 Ind. 380; Han- Adm'r v. Spitler's Adm'r, 28 Ind. cock v. Morgan, 34 Ind. 524; Kingan 488; Vol. 3, p. 339. v. Gibson, 33 Ind. 53; Stone v. Lew- (u) Brown v. Perry, 14 Ind. 32. man, 28 Ind. 97; Ogborn v. Hoffman, (v) Estep v. Larsh, 16 Ind. 82; 52 Ind. 439; The Evansville, etc., K. Francis v. Ames, 14 Ind. 231 ; Forque- R. Co. v. Wright. 38 Ind. 64; Pontius ron v. Van Meter, 9 Ind. 270; Hedrick v. Durflinger, 59 Ind. 27. v. Judy, 23 Ind. 548; Hawes v. Coombs, (t) Ogborn v. Hoffman, 52 Ind. 439; 34 Ind. 455; Boots r. Canine, 58 Ind. 450, 457; Healy v. Isaacs, 73 Ind. 226, 388 ANSWER. [CHAP. will render it sufficient under the statute, the answer will still be suffi- cient if it shows a valid and binding common-law arbitration. w It is held that in case of a statutory arbitration the parties are not bound by the award made until the same has been duly confirmed by the court designated in the submission.* The first case cited was one in which the action was brought upon the arbitration bond. A different rule might prevail where the arbi- tration is set up as a defense. The parties are bound by the submis- sion, and have no power to revoke the same after the arbitrators are sworn, y and from that time, if not from the time of the submission, the defendant should be allowed to defend against the original cause of action. It is not necessary that the defendant should show in his an- swer that the award has been performed on his part. z (l) 600. Want of consideration. (2) Where the contract is such that it imports a consideration, it need not be alleged in the complaint, and the want of consideration must be affirmatively pleaded in answer. 3 But where the contract does not import a consideration it must be alleged in the complaint and the issue is formed by the general denial. 1 " It has been held, also, that where the complaint sets out specifically, the consideration, although such allegations were unnecessary, proof of want of consideration may be given under the general denial. The answer of want of consideration may be pleaded in general terms. d Where an entire want of consideration is pleaded, it is not supported where any consideration is shown, however small. 6 But a partial want of consideration may be pleaded under the statute. It is not sufficient to allege that the instrument sued on was given without any consideration to the defendant, as the consideration may (w) Hawes v. Coombs, 34 Ind. 455; son v. Howard, 44 Ind. 413; Mitchell Boots v. Canine, 58 Ind. 450. v. Sheldon, 2 Blkf. 185; Bingham v. (x) Shroyer v. Bash, 57 Ind. 349; Kimball, 17 Ind. 396; Uobinson v. Healy v. Isaacs, 73 Ind. 226. Barbour, 5 Blkf. 468. (y) Shroyer v. Bash, 57 Ind. 349; (b) Bush v. Brown, 49 Ind. 573; Bash v. Christian, MS. Case No. 7,413, Pom. Rera., 709; Bliss' Code PI., 330. Dec. 20, 1881. (c) Butler v. Edgerton, 15 Ind. 15. (z) Walters v. Hutchins, 29 Ind. 136. (d) Con well v. Clifford, 45 In d. 392; (1 Form of answer, Vol. 3, pp. 354, Swope v. Fair, 18 Ind. 300; Earner v. 355. Morehead, 22 Ind. 854; Bu-hf. Brown, (2) Form of answer, Vol. 3, p. 341. 49 Ind. 573; Billan v. Ilerklebrath, 23 (a) R. S. 1881, 366; ante, 402; Ind. 71; Kernodle v.'Hunt, 4 Blkf. 57. Cowry v. Shane, 44 Ind. 495; Frybor- (e) Crow v. Eichingor, 34 Ind. 65; .ger v. Cockefair, 17 Ind. 404; Phil- Smock v. Pierson, Exr., 68 Ind. 405; brooks v. McEwen, 29 Ind. 347; Bee- "Wheelock v. Barney, 27 Ind. 462. XV.] ANSWER. 389 have moved to a third party, which would make it equally binding upon him if done at his instance/ Want of consideration can not be pleaded to an action on a judgment rendered in this state. g 601. Who may plead want of consideration. It is not every party to a written instrument that can successfully plead a want of consideration. This can always be done between the maker and payee of a promissory note. h And the consideration of a bill of exchange may be inquired into by the drawer against the payee, by the payee against the indorsee, and by the acceptor against the drawer. 1 But the acceptor can not plead want of consideration as against the payee.-" The right to plead want of consideration, in defense of an action on an instrument negotiable by the law merchant, is confined to such as have been negotiated after maturity. k If the instrument is negotiated before the same becomes due, want of consideration is no defense against the indorsee when he took the note for a valuable consideration in due course of business and without notice of the defense. 1 It is otherwise in case of instruments negotiable by statute. Against such an instrument the defendant may make the same defense against the indorsee that he might have made in an action by the payee. The vendee of real estate, who purchases subject to or assumes the payment of a mortgage, can not defeat the same on the ground of want of con- sideration. m 602. Illegal consideration. The defense of illegal consideration must be specially pleaded." The illegality may extend to the whole or only a part of the consider- ation. If the contract is entire, a plea that a part of the consideration is illegal will bar the action, and the same is true where the considera- tion is inseparable. But where the contract may be separated, and the legal consideration applied and the illegal portion separated and disre- garded, the answer of partial illegality will not bar the action, nor (f ) Bingham v. Kimball, 33 Ind. (j) Spurgin v. McPheeters, 42 Ind. 184; Anderson v. Meeker, 31 Ind. 245. 527. (g) Brown, Ex'r, v. Trulock, 4 Blkf. (k) R. S. 1881, 366. 429. (1) Post, 650. (h) Ballard v. Turner, 58 Ind. 127. (m) Price v. Pollock, 47 Ind. 302. (i) Spurgin v. McPheeters, 42 Ind. (n) Casad r. Holdridge, 50 Ind. 529. 527. 390 ANSWER. [CHAP. could an answer alleging that the entire consideration is illegal be supported by proof showing such a state of facts. Illegality of consideration can not be pleaded generally. The facts show in ir in what the illegality consists must be stated. In this the answer differs from a plea of want of consideration. There the alle- gation is negative that there is no consideration while the illegality is affirmative ; and the simple allegation that the consideration is illegal would be nothing more than a conclusion. (1) 603. Failure of consideration. Failure of consideration is u good defense. The answer differs materially from that of want of consideration. It is not sufficient to allege, generally, that the con- sideration has failed. The facts showing how it has failed must be specifically set out. The answer should show what the consideration was, if not alleged in the complaint, followed by the facts showing the failure. p If the complaint shows specifically what the consideration was it need not be alleged. As the answer must state the facts, if it professes to answer the whole complaint the facts alleged must show an entire failure of consideration or it will be bad. q (2) As to what will amount to a failure of consideration, see the authori- ties cited in the foot note/ 604, Partial failure of consideration. The statute authorizes the defendant to plead a partial failure of consideration. 8 The proof of a partial failure may be given under the plea of a total failure of consideration. 1 But as the facts showing either the failure or partial failure must be specifically alleged, it is much safer where the facts are not sufficient (0) Hynds v. Hays, 25 Ind. 31; Toledo, etc., K. R. Co., 27 Ind. 365; Gamble v. Grimes, 2 Ind. 392; Ever- Miller v. Gibbs, 29 Ind. 228; Numbers hart v. Puckett, 73 Ind. 409. v. Bowser, 29 Ind. 491 ; Henrys. Riten- (1) Form of answer, Vol. 3, p. 355. our, 31 Ind. 136; Moorehead v. Mur- (p) Garrett v. Heaston, 5 Blkf. 349; ray, 31 Ind. 418; Mooklar v. Lewis, 40 Applegute v. Crawford, 2 Ind. 579; Ind. 1 ; Stanford v. Davis, 54 Ind. 45; Smith v. Baxter, 13 Ind. 151; Billan v. Haskett v. Elliott, 58 Ind. 493; Barnes Hercklebrath, 23 Ind. 71; Lane v. v. Stevens, 62 Ind. 226; Moss v. The Whitt;house, 46 Ind. 389; Swope v. Witness Printing Co., 64 Ind. 125; Fair, 18 Ind. 300; Webster v. Parker, Reagan v. Burton, 67 Ind. 347; Beck- 7 Ind. 185; Moss v. The Witness ner v. Willson, 68 Ind. 533. Printing Co., 64 Ind. 125. (a) R. S. 1881, 366. (q) Tyler v. Borland, 17 Ind. 298. (t) Landry, Adm'r, v. Durham, 21 (2) Form of answer, Vol. 3, p. 356. Ind. 232; Billen v. Hercklebrath, 23 (r) Muchmorer. Bates, 1 Blkf. 248; Ind. 71; Sinex v. The Toledo, etc., R, Kernodle v. Hunt, 4 Blkf. 57; Will- R. Co., 27 Ind. 365. iams v. Rank, 1 Ind. 230 ; Sinex v. The XV.] ANSWER. 391 to show an entire failure, to limit the answer by express terms, to that part of the complaint covered by the facts pleaded, or that part of the consideration shown by the facts to have failed. A partial failure of consideration only avoids the cause of action pro tanto, and if the answer is pleaded in terms to the whole complaint it will be bad on demurrer." 605. Former adjudication.fi) A former recovery can only be proved when the facts showing such recovery are specially pleaded.* It was held in some of the earlier cases that the answer must set out the record of the former suit. w But the supreme court has since held that a judgment, the foundation of the action or defense, is not within the statute requiring written instruments to be made part of the pleading. 1 The rule thus established applies to the answer of former adjudica- tion. y The answer must show that the parties suing in the present action were either parties to the former action or that they claim through such parties. 2 When it is said that the parties must be the same, it must not be understood that all of the parties in the former action must be parties to the present suit. Issues may be joined between defendants on a cross-complaint, or between a part only of the defendants and the plaintiffs, either upon the original complaint or a counterclaim. In such case, if the parties to such issue are the same, as between them, the answer will be sufficient.* It is not necessary that the form of action or the subject-matter should be the same. b (u) Gamble v. Grimes, "2 Ind. 392; v. Randolp, 48 Ind. 496; McSweeney Webster v. Parker, 7 Ind. 185; Cald- v. Carney, 72 Ind. 430. well v. The Bank of Salem, 20 Ind. 294. (z) The State v. Page, 63 Ind. 209 ; (v) Picquet v. McKay, 2 Blkf. 465; Dixon v. Hunter, 57 Ind. 278; Morri- Brady v. Murphy, 19 Ind. 258. son v. Fishel, 61 Ind. 177; Elliott v. (w) Norris v. Ames, 15 Ind. 365; Frakes, 71 Ind. 412; Kramer v. Ma- Robbins v. Dishon, 19 Ind. 204; Pruitt thews, 68 Ind. 172; The State v. Hud- v. Cox, 21 Ind. 15; Williamson v. Fore- son, 37 Ind. 198; The Columbus, etc , man, 23 Ind. 540; Kingle v. Weston, R. R. Co. v. Watson, 26 Ind. 60; Polley 23 Ind. 588. v. Wood, 30 Ind. 407. (x) Ante, 417, and cases cited; Ly- (a) Davenport v. Barnett, 61 Ind. tier. Lytle, 37 Ind. 281. 329; Greenup v. Crooks, 50 Ind. 410; (y) Campbell v. Cross, 39 Ind. 155; Richardson v. Jones, 58 Ind. 240. Davenport r. Barnett, 51 Ind. 329; (b) Freeman on Judg., ? 253, 2-Vi, Wilson v. Vance, Adm'r, 55 Ind. 584 ; 259. Mull t-. McKnight, 67 Ind. 525; Allen (1) Forms of answer, Vol. 3, pp. 366, 367. 392 ANSWER. [CHAP. It is said that " the best and most invariable test as to whether a former judgment is a bar, is to inquire whether the same evidence will sustain both the present and the former action. If this identity of evi- dence be found, it will make no difference that the form of the two ac- tions is not the same." c The answer must show by the proper averments that, the matter set up in the present action was within the issues in the former suit. d It is not necessary, however, that the matters in controversy were actually litigated. It is enough to show that they were within the issues and might have been litigated. 6 But it is held that the opposite party may show that although the matters now in controversy were within the issues they were not liti- gated/ A judgment on demurrer may be pleaded in bar of another action where it appears on the face of the record that the merits were de- cided on the demurrer. 8 It is held in some cases that such a judgment is not a bar. h It is not necessary that the answer should show that the judgment pleaded is still in force. That it is not in force is matter of reply.' (c) Freeman on Judg., 259, citing Kitchen v. Campbell, 13 Wils. 304; Clegg v. Dearden, 12 Q. B. 576; Crockett r. Routon, Dudley, 254; Hun- ter v. Stewart, 31 L. J. Chanc. 346; Taylor v. Castle, 42 Cal. 371 ; Cannon v. Brame, 45 Ala 262 ; Percy v. Foote, 36 Conn. 102; Ramsey v. Herndon, 1 McL. 450; Martin v. Kenedy, 2 Bos. & Pul. 71 ; Duncan v. Stokes, 47 Geo. 595. See, also, Cutler v. Cox, 2 Blkf. 178; Hereth v. Yandes, 34 Ind. 102; Campbell v. Cross, 39 Ind. 155 ; Reeves v. Plough, 46 Ind. 350; Reid v. Huston, 55 Ind. 173; Turner v. Allen, 66 Ind. 252; Green v. Glynn, 71 Ind. 336. (d) Kramer v. Mathews, 68 Ind. 172; Foster v. Konkwright, 70 Ind. 123; Roberts v. Robeson, 27 Ind. 454; Patterson v. Jones, 27 Ind. 457; Bougher v. Scoby, 21 Ind. 365; Hagus P. Goodman, 12 Ind. 629; Duncan v. Holcomb, 26 Ind. 378 ; The State . Page, 63 Ind. 209; Smith v. Scantling, 4 Blkf. 443; Walker ?;. Houlton, 5 Blkf. 348; Haller v. Pine, 8 Blkf. 175; Stingley v. Kirkpatrick, 8 Blkf. 186; Athearn v. Brannan, 8 Blkf. 440; Byr- ket v. The State, 3 Ind. 248; Leach r. Leach, 10 Ind. 271; Maloiiey r. Grit- fin, 15 Ind. 213; The Indianapolis, etc., R. R. Co. v. Clark, 21 Ind. 150; Day v. Vallette, 25 Ind. 42; Nave v. Wilson, 33 Id. 294; Harvey v. Os- born, 55 Ind. 535; Winnimjhum i\ The State, 56 Ind. 243; Jenkins c. Jenkins, 63 Ind. 120; McSweeney v. Carney, 72 Ind. 430. (e) Fischli v. Fischli, 1 Blkf. 360; The Columbus, etc ., R. R. Co. v. Wat- son, 26 Ind. 50; Shaw v. Barn hart, 17 Ind. 183; Griffin v. Wallace, 66 Ind. 410, 415; Green v. Glynn, 71 Ind. 336; Kritsinger v. Brown, 72 Ind. 406. (f) Bottorff v. Wise, 53 Ind. 32; Walker v. Houlton, 5 Blkf, 348. (g) Estep v. Larsh, 21 Ind. 190; Wilson v. Ray. 24 Ind. 156. (h) Stevens p. Dun bar, 1 Blkf. 56; Sherry p. Fores-man. 6 Blkf. 56. (i) Mull v. JMcKnight, 67 Ind. 525. XV. ] ANSWER. 393 But where the answer shows upon its face that the judgment is not in force, by reason of its being reversed, or that it never was a valid judgment by reason of its having been rendered by a court having no jurisdiction, it will be subject to demurrer. J It has been held that in an action on a penal bond it is a sufficiem answer that the penalty of the bond has been exhausted by other par ties entitled to sue thereon. k A judgment against one joint contractor may be pleaded in bar of an action against the other. 1 But not where the contract is several or joint and several. The answer must show that the judgment pleaded was a final judg- ment on the merits." It is held in some of the cases that if the cause of action is not the same it must be pleaded by way of reply. But it is necessary that the answer should show that the same issue was presented in the former action, and any evidence tending to show that it is not the same would undoubtedly be admissible under the gen- eral denial. It goes directly to negative the material allegations of the answer. A judgment recovered against the maker of a promissory note as garnishee may be pleaded in bar of an action by the assignee of the note, if the judgment is rendered before notice, by the maker, of the assignment. 15 Former adjudication may be pleaded to a part of the complaint, and when so pleaded it must be confined, in terms, to such parts as were within the issues in the former action. The answer may plead former adjudication to a part and deny the residue of the cause of ac- tion in the same paragraph.* 1 Under the statute requiring the defendant who has been personally served with process to set up his counterclaim under the penalty of paying the cost of a subsequent action thereon, the facts must be pleaded by way of answer/ If it appears that the party against whom the former judgment is (j) Smock v. Graham, 1 Blkf. 314. (o) James v. The State, 7 Blkf. 325; (k) The State v. Ford, 5 Blkf. 392. Brandon v. Judah, Adm'r, 7 Ind. 545. (1) Taylor v. Claypool. 5 Blkf. 557; (p) Covert v. Nelson, 8 Blkf. 265. Kobinson r. Snyder, 74 Ind. 110. (~q) Wilson v. Kay, 24 Ind. 156; (m) Kirkpatrick v. Stringley, 2 Ind. Switzer v. Miller, 58 Ind. 561 ; Picker- 269 ; Hayes v. Haye?, 64 Ind. 243. ell r. Frankem, 64 Ind. 25. (n) Paine v. The State, 7 Blkf. 206; (r) Post, 680; Norris v. Amos, 15 Stringley . Kirkpatrick. 7 Blkf. 359; Ind. 365; Polley v. Wood, 30 Ind. 407. Koberts v. Norris, 67 Ind. 386. 394 ANSWER. [CHAP. pleaded had no notice of the pendency of the action, the judgment will be no bar. 8 But it is not necessary that the answer should show that notice was given, as it will be presumed. 1 The want of notice may be set up by way of reply, but it is not necessary. The proof of notice must be made by the defendant on the trial, or may be disproved by the plaintiff" without a special reply. That there was error in the former proceeding does not affect the right of the defendant to plead the judgment, so long as it is unreversed." It is otherwise if the judgment is void. v The dismissal of a former action can not be pleaded as an adjudica- tion." What was in issue in the former action must be determined from the pleadings. 1 In an action for the breach of a continuing covenant, a judgment for a former breach of the same covenant can not bar the action. The second breach is treated as a new and independent cause of act ion. y The allowance of a claim by an executor or administrator is not a final judgment upon which an answer of former adjudication can be sustained. 2 An order of the supreme court upon proper notice, reinstating an appeal that has been dismissed, is an adjudication. 8 And the allowance of a claim by a board of county commissioners. 15 But it is held otherwise where the claimant is allowed to appeal or bring an action against the county at his option. The recovery against a guardian and his sureties, on his bond, by (s) Woodhull v. Freeman, 21 Ind. mikel P. Cox, 58 Ind. 133; Walker v. 229; Packard v. Mendenhall, 42 Ind. Heller, 73 Ind. 46. 598. (x) Sharkey v. Evans, Adm'r, 46 (t) Abdil v. Abdil, 33 Ind. 460; The Ind. 472. State v. Ennis, 74 Ind. 17. (y) Block v, Ebner, 54 Ind. 544. (u) Houseman v. Moulton, 15 Ind. (z) Fiscus v. Kobbins, 60 Ind. 100. 367; Abdil v. Abdil, 33 Ind. 460; Dav- (a) Blair v. Lanning, 61 Ind. 499. enport v. Barnett, 51 Ind. 329; Britton (b) The Board of Comm'rs of Han- v. The State, 54 Ind. 535 ; Pressler v. cock County v. Binford, 70 Ind. 208; Turner, 57 Ind. 56; Parker v. Wright, The Board of Comm'rs of Jackson 62 Ind. 398; The State v. Benson, 70 County v. Applewhite, 62 Ind. 464; Ind. 481. The State v. Benson, 70 Ind. 481 ; (v) Packard v. Mendenhall, 42 Ind. Campbell w. The Board of Comm'rs of 598; Davis v. Green, 57* Ind. 493; Monroe County, 71 Ind. 185. Joyce v. Whitney, 57 Ind. 550. (c) K. S. 1881, 5771 ; Jameson v. (w) Miller v. Mans, 28 Ind. 194; The Board of Comm'rs of Bartholo- Whitworth v. Sour, 57 Ind. 107; Car- mew County, 64 Ind. 524, 534. XV.] ANSWER. 395 one of his wards, can not be pleaded against an action by another of the wards on the same bond. d 606. Estoppel in pais. Matter of estoppel must be specially pleaded. 6 The answer must set out the acts or representations of the plaintiff constituting the estoppel, and allege that the plaintiff, at the time, had knowledge of the facts out of which his rights sprung ; that the defendant acted in good faith, and was ignorant of the facts ; that he acted upon the acts or representations of the plaintiff, and parted with some right or invested something on account of such acts or rep- resentations, believing them to be true ; and the facts stated must show that the defendant was in such a position that he had a right to rely upon the acts or representations/ The law is thus stated in Fletcher v. Holmes : " The doctrine of es- toppel in pais rests upon a reasonable and just foundation. For the prevention of fraud, the law will hold a party to be concluded by his own act or admission. Surely, this can have no application where every thing was equally known to both parties, or where, the party sought to be estopped was ignorant of* the facts out of which his rights sprung, or where the party seeking to conclude him was in no degree influenced by the acts or admissions which are set up. Estoppels in pais never exist without reference to the moral qualities of the con- duct alleged. The door is shut against asserting a right, when that would result in doing an injury, by the party asserting it to some other person, or when in 'good conscience and honest dealing he ought not to be permitted to gainsay his previous conduct. '"(1) 607. Estoppel against married women. It is not within the scope of this chapter to go into the question of estoppel generally, or attempt to show by authority what will constitute an estoppel. The decided cases on this question are very numerous, but a consideration of them here would be out of place. There are some questions, how- ever, that should be specially noticed. One of these is as to the effect of matter of estoppel against married women. It was held in some of the earlier cases in this state that a married woman might be estopped in the same manner and to the same extent (d) Cotton, Ex'r, r. The State, 64 v. Vickers, 35 Ind. 27; The Junction Ind. 573. R. R. Co. v. Harpold, 19 Ind. 347; Ray (e) Wood v. Ostram, 29 Ind. 177. v. McMurtry, 20 Ind. 307; Windle v. (f) Larsh v. Rendell, 72 Ind. 475; Canaday, 21 Ind. 248; llusselman v. Fletcher v. Holmes, 25 Ind. 458, 469; McElhenny, 23 Ind. 4, McCabo r. "Woodward v. Wilcox, 27 Ind. 207; Raney, 32 Ind. 309; Long v. Anderson, The State v. Pepper, 31 Ind. 76; Cox 62 Ind. 537. (1) Form of answer, Vol. 3, p. 363. 396 ANSWER. [CHAP. as any other person. This rule was carried to the extent of estopping her to set up title to real estate. g The effect of these decisions was that a married woman, who was in- capacitated by an express provision of the statute to convey her real es- tate, or incumber the same except by deed, in which her husband should join, might do the very act forbidden by statute, by some act of estoppel w pais. The absurdity of such a doctrine became so ap- parent that these cases were finally overruled, and the rule established that a married woman could not do indirectly by estoppel what she was expressly forbidden to do directly by her own conveyance. 11 These cases, it must be remembered, apply only to cases where the attempt is made to prevent a married woman from asserting title to real estate. By a late statute the disabilities of married women are expressly removed, except as provided in the act.' The limitation of the right of a married woman to convey or in- cumber her real estate, is continued in force by this statute, but it is provided that she shall be bound by an estoppel in pais like any other person.J It is difficult to see upon what ground any such provision should have found its way into the statute. It is certainly not based upon sound reason or justice. The provision that the wife shall not convey or mortgage her real estate, except where the husband shall join in the conveyance, is for her protection ; but, under this statute, she may, by an unwary admission, representation, or act, deprive herself of her title. In the case of Behler v. Weyburn, the supreme court quotes, with approval, the following language from Lowell v. Daniels, 2 Gray, 161 : " This raises the material question at issue between the parties whether a married woman and her heirs may be barred of her estate by an es- toppel in pais. She can make no valid contract in relation to her es- tate. Her separate deed of it is absolutely void ; any covenants in such separate deed would be likewise void. If she were to covenant that she was sole, was seized in her own right, and had full power to convey, such covenants would avail the grantee nothing. She could neither be sued upon them nor estopped by them. The law has ren- dered her incapable of such a contract, and she finds in her incapacity her (g) Gatling v. Rodman, 6 Ind. 239; (h) Behler v. Weyburn, 59 Ind. 143; McCaffrey v. Corrigan, 49 Ind. 175; Unfried v. Heberer, 63 Ind. 67; Su- Scrantim v. Stewart, 52 Ind. 68; Burk man v. Springate, 67 Ind. 115. v. Hill, 55 Ind. 419; King v. Rhea, 56 (i) R. S. 1881, 5115. Ind. 1; Miles v. Lingerman, 24 Ind. (j) R. S. 1881, 5117. 385. XV.] ANSWER. 397 protection ; her safety in her weakness. And we think a married wo- man can not do indirectly what she can not do directly , can not do by acts in pais what sjie can not do by deed ; can not do wrongfully what she can not do rightfully. She can not by her own act enlarge her legal capacity to convey an estate. "This doctrine of essoppel in pais would seem to be stated broadly enough when it is said that such estoppel is as effectual as the deed of the party. To say that one may by acts in the country, by admission, by concealment, or by silence, in effect do what could not be done by deed, would be practically to dispense with all the limitations the law has imposed upon the capacity of infants or married women to alienate their estates. " k The wisdom of breaking in upon these well-established rules by stat- utory provisions may well be doubted, especially where the statute has so little of reason or justice to support it. But, however we may feel in- clined to question its wisdom, this statute subjects the married woman to the same rules as to estoppel in pais, as if she were sole, and the late decisions on the point are no longer the law. 608. Release of surety; failure to sue principal. The surety may be released from liability in various ways by the acts or negligence of the creditor. This can not be the result of a mere failure to sue when the debt matures. If the surety desires that the creditor shall sue he must give him written notice " forthwith to institute an action upon the contract." 1 When such notice is given, the creditor must bring his action within a reasonable time, or the surety will be released from liability. This mode of relieving the surety from further liability is purely statutory, and the statute must be substantially complied with in giv- ing the notice." The rule is, that when this notice is given the creditor must sue within a reasonable time. What is a reasonable time, must depend, to a certain extent, upon the circumstances of each case. But where the amount of the debt is such that the suit may be brought before a (k) Behler v. Weyburn, 59 Ind. 143, Ind. 363; Root v. Dill, 38 Ind. 169; 145; Lowell v. Daniel, 2 Gray, 161. Whittlesey v. Heberer, 48 Ind. 260. (1) R. S. 1881, 1210. (n) Franklin v. Franklin, 71 Ind. (m) Reid v. Cox, 5 Blkf. 312; Over- 573; Halstead v. Brown, 17 Ind. 202; turf v. Martin, 2 Ind. 507; Craft, Ex'r, Driskill v. The Board of Comm'rs of v. Dodd, 15 Ind. 380; Halstead . Washington County, 53 Ind. 532; Brown, 17 Ind. 202; Kaufn\an v. Wil- Chrisman v. Tuttle, 59 Ind. loo; Mil- son, 29 Ind. 504; Sims v. Parks, 32 ler v. Arnold, 05 Ind. 488; Colerick v. McCleas, 9 Ind. 245. 398 ANSWER. [CHAP. justice of the peace, and there is one before whom the action can be instituted, the suit should be brought at once. If the action must be brought in the circuit court it should be brought at the next term of the court. The requirement that the creditor must sue, upon the proper notice being given, is subject to exception. If the principal is a non-resident of the state, at the time the notice is given, and continues to reside out of the state, the creditor is not bound to bring the action. The notice must be served personally by reading and delivering a copy to the creditor or obligee in person, or to some person of proper age, at his usual place of residence. p Where the principal is shown to be dead, the answer must allege that he left an estate in the county out of which the debt might be made by administration thereon. q (l) 609. By extending time to principal. It is a good defense that the creditor has extended the time of payment to the principal without the knowledge or consent of the surety. The answer must show : 1. That the time was extended by agreement with the principal for a valuable consideration/ 2. That the extension was for a definite time. 8 3. That it was without the knowledge and consent of the surety.' 4. That the creditor had knowledge that the relation of principal and surety existed between the parties." These rules are well established by authority. The most difficult question has been to determine what will amount to a sufficient con- sideration for the new promise to extend the time. The reason upon which the rule is founded is, that by the extension of the time of pay- ment, the creditor puts it out of his power to sue the principal. (o) Kowe v. Buchtel, 13 Ind. 381; & Watts, 437; Steele v. Boyd, 29 Am. Whittlesey v. Heberer, 48 Ind. 260; Deo. 218, 225, and note; s. c., 6 Leigh, Conklin v. Conklin, 54 Ind. 289. 547. (p) McCoy v. Lockwood, 71 Ind. (s) Tracy v. Quillen, 65 Ind. 249; 319, 329. Jarvis v. Hyatt, 43 Ind. 163; Menifee (q) Franklin v. Franklin, 71 Ind. v. Clark, 35 Ind. 304; Prather v. 573; Whittlesey v. Heberer, 48 Ind. Young, 67 Ind. 480; Chrisman v. Per- 260; Kowe v. Buchtel, 13 Ind. 381. rin, 67 Ind. 586; Starret v. Burkhalter, (r) Menifee v. Clark, 35 Ind. 304; 70 Ind. 285. Buck v. Smiley, 64 Ind. 431 ; Dare v. (t) Jarvis r. Hyatt, 43 Ind. 163; Hall, 70 Ind. 545; Abel v. Alexander, Prather v. Young, 67 Ind. 480. 45 Ind. 523; Hogshead v. Williams. 55 (u) McClosky v. -The Indianapolis Ind. 145; United States v. Simpson, 24 Mfg's, 67 Ind. 86; Davenport v. King, Am. Dec. 331, and note; s. c., 3 Pen. 63 Ind. 64; Amis v. Beitman, 73 Ind. 85. (1) Form of answer, Vol. 3, p. 392. XV.] ANSWER. 399 If there is not such a consideration as will bind the creditor not to sue the principal, the surety is not released. It was held in an early case, that the agreement to pay interest at the same rate provided for in the original contract would be a sufficient consideration/ But this case has been overruled. w There must be some new consideration to uphold the new contract. If the interest is paid in advance, or a greater rate is paid, or any in- dependent consideration is promised or paid, and the promise to extend the time is based upon this consideration, the surety will be released. * As to the question of notice to the holder that the relation of prin- cipal and surety exists between the makers, if the note itself shows, upon its face, that one of the parties executed the same as surety for the other, this is sufficient. The notice appears on the face of the in- strument. But where the parties appear to be bound as principals, actual notice must be shown. (1) 610. By alteration of the contract. The alteration of the con- tract, whether by agreement of the creditor and principal, or with the knowledge of the payee without agreement, will discharge the surety if made without his knowledge or consent.* It is not necessary that the answer should show that the contract has been changed, to the injury of the surety. It is enough if it is not the same contract." But it must appear that the alteration was made by a party to the instrument. An alteration made by a stranger, although material, can not release the surety.* (v) Pierce v. Goldsberry, 31 Ind. 52. Bank, 61 Ind. 349; Judah v. Zimmer- (w) Abel v. Alexander, 45 Ind. 523; man, 22 Ind. 388; Miller v. Stewart, 9 Cbrisman v. Tuttle, 59 Ind. 155. Wheat. 680; Woodward v. Bank of (x) Jarvb v. Hyatt, 43 Ind. 163; America, 10 Am. Dec., 239, 267, and Woodburn v. Carter, 50 Ind 376. cases cited in the note; s. c., 19 Johns. (y) Zimmerman v. Judah, 13 Ind. 391 ; Greenfield Bank v. Stowell, 25 286; Judah v. Zimmerman, 22 Ind. Am. Kep. 67; s. c., 123 Mass. 196; 388; Hart v. Clouser, 30 Ind. 210; Bank of Limestone v. Penick, 15 Am. The State v. Blair, 32 Ind. 313; The Dec. 136, 140, and note; s. c., T. B. Richmond MPg Co. v. Davis, 7 Blkf. Monroe, 98; Bowers v. Briggs, 20 Ind. 412; The State v. Polke, 7 Blkf. 27; 139;" Chappel v Spencer, 23 Barb. 586. Emmons v. Meeker, 55 Ind. 321 ; Lud- (a) Woodward v. Bank of America, low v. Simond, 2 Am. Dec. 291, 315, 10 Am. Dec. 239, 269, and authorities and note; s. c., 2 Caine's Cases, 1. cited; Collins v. Makepeace, 13 Ind. (z) Crandall v. The First National 448. (1) Form of answer, Vol. 3, p. 391. 400 ANSWER. [CHAP. The fact that the name of one of the sureties is forged will not re- lease the other, although he may have become such surety believing the signature to be genuine. b Where the alteration is of a written instrument, the foundation of the action, the answer must be verified. It is not necessary, in that case, to set out the facts showing what the alterations are. It is enough to deny the execution of the instru- ment as sued on.(l) 611. By surrender of lien on property of principal or other security held by creditor. Where, in addition to the personal se- curity, the creditor has a lien upon property of the principal, or holds property of his as security for the same debt, he must use the proper diligence to make such additional security available, and a release or surrender of such security may be specially pleaded by the surety in bar of the action against him if the property was sufficient to pay the entire indebtedness, if not it may be pleaded as a partial defense to the extent of the value of the property or security. And this is true, by a much stronger reason, where the security that the surety has the equitable right to have applied to the payment of the debt has been lost by the fraud or willful negligence of the payee. d But it is not enough to show that the security has been lost by the mere passive negligence of the creditor. 6 The general rule is that a mere failure to sue the principal, or to en- force collection by suit, where the payee holds property security, will not discharge the surety, though there are authorities the other way. In this state it is well settled that a failure to sue the principal until he becomes insolvent will afford the surety no defense. Our statute furnishes a remedy. He may compel the payee to sue by giving the written notice required by the statute. When this is done the creditor must sue. Otherwise his mere failure to sue is no defense. The same rule applies to the securities he may hold, as the surety may compel (b) Helms v. The "Wayne Agricul- (d) Hubbard v. Harrison, 38 Ind. tural Co., 73 Ind. 325; The Wayne 32'-J ; Frank v. Braskett, 44 Ind. 92; Agricultural Co. v. Cardwell, 73 Ind. Robison v. Roberts, 20 Ind. 155. 555. (e) Philbrooks v. McEwen, 29 Ind. (c) Stewart v. Davis, 18 Ind. .74; 347; People r. Jansen, 5 Am. Dec. 27">, Alsop v. Hutrhings, 25 Ind. 347; Phil- 279, and authorities cited in note; brooks v. McEwen, 29 Ind. 347; Hoi- Var.ee v. English, 78 Ind. 80. land v. Johnson, 51 Ind. 34(5; McCoy (1) Form of answer, Vol. 3, p. 348. . Wilson, 58 Ind. 447; Dixon v. Ew- ing, 17 Am. Dec. 590; s. c., 3 Ohio, 280. XV.] ANSWER. 401 him to sue by giving the proper notice, and in the action have the se- curities applied to the satisfaction of the debt. If he fails to give the necessary notice the creditor may remain pas- sive, although the securities, by reason of the delay, become worthless. The surety can not found an equity upon the negligence of the cred- itor, when he himself has been guilty of negligence in not giving the proper notice to sue. The rule is different where the benefit of the se- curity is lost by the affirmative act of the creditor. 612. Release of indorser by failure to sue maker. The liability of the indorser differs materially from that of the surety in respect to the duty of the payee to sue the maker. His contract is to pay the debt upon failure to collect it from the maker, due diligence being used by the payee. There is a material difference in this respect between notes negotiable by the law merchant and those negotiable by statute. In the case of promissory notes negotiable by statute notice to the indorser Is not necessary to fix his liability, but the payee must use due diligence to collect from the maker before he can sue the in- dorser, and a failure to do so will ordinarily discharge the assignor. But it is not necessary that such a defense should be specially pleaded. If the indorsee sues the indorser he must, in his complaint, show that he has used due diligence to collect from the maker, or show a sufficient excuse for not having done so. It is not sufficient to allege generally that due diligence has been used. The facts showing what has been done, or the excuse for not having sued the maker, must be alleged/ If the complaint fails to show the necessary facts to authorize the in- dorsee to sue the indorser, the defect may be reached by demurrer. If the facts are sufficiently stated, a general denial will present the issue. What will amount to due diligence or a sufficient excuse, will be con- sidered in another place. The right of the indorsee to sue the indorser on a note payable in a bank in this state, does not as in case of a note negotiable by the stat- ute depend upon whether he has used due diligence to collect from the maker or not. The contract of such an indorser is that he will pay the same " on failure of the maker to do so, on the proper presentment and demand, if he, the indorser, is duly notified of such failure of the maker." 8 (f) Reynolds v. Jones, 19 Ind. 123; National Bank, 64 Ind. 92; Somerby Herald v. Scott, 2 Ind. 55; Hanna v. v. Brown, 73 Ind. 353; Vol. 3, p. 60-62. Pegg, 1 Blkf. 181; Roberts v. Mas- (g Story Prom. Notes, 135, 230; ters, 40 Ind. 461 ; Couch v. The First Blacklege v. Benedick, 12 Ind. 389. 26 ANSWER. [CHAP. It is necessary, therefore, that the plaintiff should show that the note has been presented for payment at the proper time and place ; that it was not paid by the maker, and that reasonable notice was given to the indorser, or a sufficient excuse for the want of presentment and no- tice. These facts must be set out in the complaint. 11 Therefore, no special answer is necessary. The whole question arises under the issue formed by the general denial. The same rule applies to bills of exchange. 613. Tender. A doubt was expressed in an early case whether a tender could be proved under the general denial. 1 An answer of tender undoubtedly sets up new matter, and should be specially pleaded. The question of tender may arise in different ways. It is only considered here as it may arise in defense of a cause of action, and not as the foundation upon which to bring suit. The answer of a tender of payment is rarely resorted to in practice. The statutory provision that authorizes the defendant to avoid the cost of the action by offering to confess judgment is more conven- ient.J Where a tender is pleaded in discharge of a contract, it must be so complete and perfect as to vest the absolute property in the per- son to whom it is tendered. b The tender must be of "such an article in every material respect as the contract under which it is made requires." 1 But where the contract is to deliver unidentified property of a speci- fied kind, it is sufficient to allege a tender of a sufficient amount of the kind and quality named. m To be sufficient, the answer must show 1. A tender of the full amount, whether the contract calls for prop- erty or money or both." But the tender of too much does not render it insufficient. And where the contract requires that a note shall be given with in- terest from date, it is not sufficient to tender the amount for which the note should be given. The note must be tendered or the amount of the note with interest to its maturity. 1 " (h) Griffin v. Kemp, 46 Ind. 172; (m) Newby v. Rogers, 54 Ind. 193; Green v. Louthain, 49 Ind.* 139; Pol- Polk v. Frash, 61 Ind. 206. lard v. Bowen, 57 Ind. 232; Patterson (n) Streeter v. Henley, 1 Ind'. 401; r. Carrell, 60 Ind. 128. Henley v. Streeter, 5 Ind. 207; Hamar (i) Schrader v. Wolflin, 21 Ind. 238. v. Dimmick, 14 Ind. 105. ( j) R. S. 1881, 514, 515. (o) Patterson v. Cox, 25 Ind. 261. (k) Schrader v. Wolflin, 21 Ind. 238. (p) Wainscott r. Smith, 68 Ind. 312. (1) Sharp u. Jones, 18 Ind. 314. XV.] ANSWER. 403 2. That it was made, when in money, in money that was at the time legal. tender. q 3. That it was made without condition prejudical to the plain tiff. r Where the tender is of the amount due upon commercial paper, it may be upon condition that the paper is delivered up, but not where the paper is negotiable by statute, nor can a tender be made upon con- dition that a mortgage securing the amount is canceled. 8 Where the tender is made upon condition, and is accepted by the op- posite party, with knowledge of the condition, he will be bound by his acceptance, although if refused the tender would not be good. 4 4. Where the tender is of money, that the amount tendered is brought into court for the use of the plaintiff. u The rule that the money must be brought into court does not apply to actions for specific performance. In such cases it is sufficient to allege a readiness to pay the amount when the same is ascertained by the decree/ and it is held that this rule only applies where the answer confesses some or all of the allega- tions of the complaint, and pleads the tender as a defense. w 5. That the tender was made to the person authorized to accept payment. 1 6. Where the contract fixes the time in which property is to be de- livered that the tender was made within the time named. 7 ' A tender before the proper time is no better than one made too late. z (l) 614. Effect of tender. A tender and refusal of the property at the time and place fixed by the contract for its delivery, vests the property in the creditor, and puts an end to his right to sue upon the contract. In this class of cases it is not necessary to allege a subse- (q) The Bank of the State of In- (v) Fall v. Hazelrig, 45 Ind. 676; diana v. Lockwood, 16 Ind. 306; Lynch v. Jennings, 43 Ind. 276; Ruckle Thayer v. Hedges, 23 Tnd. 141 ; Brown v. Barbour, 48 Ind. 274. v. "Welch, 26 Ind. 116; Bowen v. Clark, (w) Sowle v. Holdridge, 25 Ind. 119. 46 Ind. 405. (x) King v. Finch, 60 Ind. 420. (r) Bickle v. Beseke, 23 Ind. 18; (y) Newbyr. Rogers, 40 Ind. 9; Ad- Ferguson r. Wagner, 41 Ind. 450; ams v. Dale, 29 Ind. 273; Smith . Rose v. Duncan, 49 Ind. 269; Storey v. Smith, 8 Blkf. 208; Cook v. Gray, 6 Crewson, 55 Ind. 397. Ind. 335; Ross v. Swiggett, 16 Ind. (s) Story v. Crewson, 55 Ind. 397. 433; Larimore v. Hornbaker, 21 Ind. (t) Bickle v. Beseke, 23 Ind. 18. 430. (u) Anson v. Byrd, 6 Ind. 475; (z) Reed v. Rudman, 6 Ind. 409. Moon v. Martin, 55 Ind. 218. (1) Form of answer, Vol. 3, p. 398. 404 ANSWER. [CHAP. quent readiness to comply with the contract, or that the defendant brings the property into court. 8 Where a tender is made of money as payment of a debt, it amounts to an admission on the part of the defendant that he owes the plaintiff that amount, and where the money is brought into court it becomes at once the property of the plaintiff; and although he may recover a judgment for a smaller sum, he is still entitled to the full amount paid into court as a tender. b It is otherwise where the tender has been made without making it good by bringing the money into court. Although the tender is an ad- mission of that amount due, it is not conclusive, and the defendant is not bound to bring the money into court, but may abandon the tender and prove a less sum to be due the plaintiff. The effect of a tender in this class of cases, kept good by paying the amount of money into court, is that, if the plaintiff recovers judgment for a smaller sum he must pay the cost. d And where the contract bears interest, the interest ceases from the time of the tender. 6 615. Tender after suit brought. A tender after suit brought can not be pleaded in bar of the action, but may be to its further maintenance. f Such a tender would, if sufficient in all other respects, render the plaintiff liable for all costs made after the tender. 616. Failure of plaintiff to tender performance. As a rule the failure of the plaintiff to tender performance need not be specially pleaded as a defense. Where a tender is necessary, on the part of the plaintiff, as a condition precedent to his right to maintain the action, such tender must be alleged in the complaint, and the issue will arise under the general denial. 8 But cases may arise where, although a tender would be necessary to entitle the plaintiff to sue, his cause of action may be such that it is not necessary to allege a tender in the complaint. Thus, where the ac- (a) Mitchell v. Merrill, 2 Blkf. 87 ; (g) Parks v. The Evansville, etc., R. Cromwell v. Wilkinson, 18 Ind. 365. R. Co., 23 Ind. 567; Mather v. Scoles, (b) Reed v. Armstrong, 18 Ind. 446; 35 Ind. 1 ; McCaslin v. The State, 44 Sowle v. Holdridge, 20 Ind. 204 ; Sowle Ind. 151 ; Huff v. Lawler, 45 Ind. 80 ; v. Holdridge, 25 Ind. 119; Barnes v. Fall v. Hazelrig, 45 Ind. 576; Sum- Bates, 28 Ind. 15. mers v. Sleeth, 45 Ind. 598; Overly v. (c) Abel v. Opel, 24 Ind. 250. Tipton, 68 Ind. 410 ; Melton v. Coffett, (d) Prather v. Pritchard, 26 Ind. 65. 59 Ind. 310; Cole v. Wright, 70 Ind. (e) Hunter v. Bales, 24 Ind. 299. 179 ; Clouse v. Elliott, 71 Ind. 302. (f ) Ireland v. Montgomery, 34 Ind. 174. XV.] ANSWER. 405 tion is upon a note which does not show, upon its face, that it is paya- ble on condition the complaint would be good without the allega- tion of a tender. But if the note were given in consideration that the plaintiff would perform some act that would amount to a condition precedent the defendant must plead the condition as a defense. 11 617. Usury. The right to defend against any part of the interest claimed to be due under the contract, on the ground that it is usurious, is governed by statute. 1 The question whether the rate of interest is illegal or not must be governed by the statute in force when the contract was made. If legal then it can not be rendered illegal by a subsequent statute. But it has been held that where, under the statute in force, the con- tract is voidable on account of the usurious rate of interest, it may be rendered valid by a subsequent statute, and may be enforced. > The soundness of this rule may well be doubted when applied to contracts voidable under the law in force at the date of its execution. But the same rule has been applied where the contract was void. k Where the rate of interest is illegal at the date of the contract, al- though there is no provision authorizing the debtor to recoup the usurious interest paid, if a subsequent statute is passed allowing such a defense he may take advantage of the statute if in force when the suit is commenced.* The present statute provides that the legal rate of interest, in the absence of any provision in the contract fixing a higher rate, shall be six per cent per annum, but the parties may lawfully contract in writing for eight per cent per annum. 1 It further provides that, where a greater rate than eight per cent is contracted for, the con- tract shall be void as to the usurious interest contracted, and where the usurious interest has been reserved or paid the debtor may recoup the same. m Under this statute, where the written contract sued on shows upon its face a usurious rate, to the extent of the illegal interest it is void. (h) Cook v. Bean, 17 Ind. 504; Gor- r. Phillips, Adm'r, 55 Ind. 226; Wood ham v. Reeves, 3 Ind. 83 ; Mix v. Ells- v. Kenedy, 19 Ind. 68; Shockley v. worth, 6 Ind, 517; Carver v. Fenni- Shockley, 20 Ind. 108. more, 8 Ind. 135. (k) Reed v. Coale, 4 Ind. 283 ; An- (i) Shook v. The State, 6 Ind. 113. drews v. Russell, 7 Blkf. 474. (j) Sparks v. Clapper, 30 Ind. 204; (a) Bowen v. Phillips, Adm'r, 55 Klingensmith v. Reed, 31 Ind. 389 ; Ind. 226. Pattison v. Jenkins, 33 Ind. 87; High- (1) R. S. 1881, 5198. ail v. McMickle, 39 Ind. 270; Bowen (m) R. S. 1881, 5201. 406 ANSWER. [CHAP. This being the case, no answer of usury is necessary, as the court can only allow judgment for legal interest. But where the fact of illegal interest having been contracted for does not appear on the face of the contract, or such interest has been reserved or paid, the fact must be specially pleaded. The answer must not go to the whole complaint, as the contract, under the statute, is only void in part, and the facts showing to what extent it is void, and the amount of illegal interest already reserved or paid, must be stated. And where the principal of the contract sued on is in part made up of usurious interest under a former contract or liability, the answer should show specifically the contract and the amount of usurious in- terest included. It was held in some of the earlier cases that the answer must show that the usurious interest was corruptly reserved, where the instrument did not show upon its face that it was usurious. p In others it is held that where the rate of interest reserved is shown to be usurious, the law will conclusively presume such interest to have been corruptly taken or contracted for. q Under later statutes, such as the one now in force, it is held that the answer need not allege that the unlawful interest was corruptly re- served/ Where the contract is to be performed in another state, and by the statute of that state it is usurious, such statute must be set out as a part of the answer. 8 If no statute is pleaded, the courts of this state must presume that the common law prevails in the state where the contract is executed, and that no rate of interest would be illegal. 1 It was held in some of the earlier cases that, where there was noth- ing to show whether there was any statute of the state where the con- tract was to be performed, it would be construed according to the law of this state," but these cases have been overruled." (n) Hays v. Miller, 12 Ind. 187; (q) Reed v. Coale, 4 Ind. 283. Collins v. Makepeace, 13 Ind. 448; (r) Cole v. Bansemer, 26 Ind. 94. Webb v. Deilch,17 Ind. 521; Mclntire (s) Smith v. Muncie National Bank, r. Whitney, 17 Ind. 528; Wilson v. 29 Ind. 158; Engler v. Ellis, 16 Ind. Flemming, 23 Ind. 119. 475. (o) Engler v. Collins, 16 Ind. 189; (t) Buckinghouse v. Greeg, 19 Ind. Wilson v. Flemming, 23 Ind. 119. 401. (p) Shook v. The State, 6 Ind. 113; (u) Shaw v. Wood, 8 Ind. 518; Bly- Cohee v. Cooper, 8 Blkf. 115; Sutton v. stone v. Burgett, 10 Ind. 28. Fletcher, 6 Blkf. 362; Connell v. Pum- (v) Smith v. Muncie Bank, 29 Ind phrys, 9 Ind. 135. 158. XV.] ANSWER. 407 Where the contract is executed in one state to be performed in another, and in one state the rate of interest is lawful, and in the other not, it should be held to have been made by the parties with reference to the place where it would be legal." Our statute is made to apply to all contracts made within the state, although to be performed out of the state, but secured by mortgage on real estate within this state. The statute is applicable so far as the liability of the land is concerned. x Where the note sued on is one governed by the law merchant, the defense of usury can not be pleaded against an innocent indorsee for value before maturity, although, where the maker is compelled to pay usurious interest, he may sue the original holder of the note and re- cover the amount of illegal interest he is thus forced to pay. y The statute only authorizes the recoupment of illegal interest where *' a greater rate than eight per cent is contracted for and in an action on a contract affected by such usury." 2 Therefore, where there is no contract in writing, although a greater rate of interest than six per cent, but not above eight, has been paid, it can not be recouped.* It was held otherwise in one case, b but this decision was overruled in the case of Hiatt v. Eink. The present statute differs from the one under which the cases cited were decided. The statute then in force only gave the right to recover the interest paid in excess of ten per cent. The present act allows the recoupment of all interest paid in excess of six per cent, but the right to recoup any part of the interest is only given where there is a con- tract for a greater rate than eight per cent. Although the plaintiff without a written contract can only recover six per cent, if a greater rate has been paid voluntarily the defendant can not recover it back by way of recoupment or otherwise, as the stat- ute gives him no such right. Where a note is given for usurious interest, and there is no other consideration, an answer of want of consideration would be sufficient to raise the question. The penalty against national banks for reserving usurious interest is (w) Story's Conflict of Laws, 6th (y) Lacy v. Brown, 67 Ind. 478. ed., 305a.; 2 Par. on Con , 5th ed., p. (z) K. S. 1881, 5201. 58'2etseq.; Depau v. Humphreys, 20 (a) Reynolds v. Roudabush, 59 Ind. Mart. (La.) 1 ; Peck v. Mayo, 14 Vt. 483; Hiatt ??. Rink, 64 Ind. 590. 33; Chapman v. Robertson, 6 Paige, (b) Haggerty v. Jtiday, 58 Ind. 154. 627; Butler v. Myer, 17 Ind. 77. (c) Musselman v. McElhenney, 23 (x) R. S. 1881, I 5204. Ind. 4. 408 ANSWER. [CHAP. governed by the act of Congress on that subject, and not by our stat- ute.' 1 (1) 618. Who may plead usury. It is held that the defense of usury is personal to the borrower, his heirs, and representatives, and that the vendee of real estate incumbered by mortgage tainted with usury can not make the defense. 6 But that the defense may be made with the consent of the party who made the usurious contract/ The party whose consent is required need not be a party to the suit. g The maker of a note can not defend against the same in the hands of an assignee on the ground that the assignment was made in considera- tion of usurious interest. 11 Nor can the assignor in an action against him by a bonaf.de assignee defend on the ground that the note was given for an illegal consid- eration. 1 But, where the maker or original debtor is insolvent, a junior in- cumbrancer may take advantage of usury in the prior incumbrance without the consent of the debtor for the purpose of protecting the fund out of which the debts are to be satisfied. j And the defense may be made by a surety. k As to what will amount to usury, see the authorities cited in the foot- note. 1 619. Breach of covenant ; deed the foundation of the ac- tion. Where defense is made in an action to recover the purchase- money for real estate on the ground of a breach of covenants contained in the deed, the deed is the foundation of the defense, and must be (d) Wiley v. Starbuck, 44 Ind. 298. ( j) Butler v. Myer, 17 Ind. 77; Cole (e) Stephens v. Muir, 8 Ind. 352; v. Bansemer, 26 Ind. 94. Stein v. Indianapolis, etc., Ass'n, 18 (k) Stockton v. Colenian, 39 Ind. Ind. 237; Wright v. Bundy, 11 Ind. 106. 398; Price v. Pollock, 47 Ind. 362; (1) The State Bank v. Coquillard, 6 Price v. Bowen, 47 Ind. 574; Stude- Ind. 232; Siter v. Sheets, 7 Ind. 132 . baker v. Marquardt, 55 Ind. 341. Vail v. Heustis, 14 Ind. 607; Borum (f) Borum v. Fouts, 15 Ind. 50. v. Fouts, 15 Ind. 50; Keed v. Helm, 15 (g) Gordon v. Montgomery, 19 Ind. Ind. 428; Brown -. Maulsby, 17 Ind. 110. 10; Musselmen . McElhenny, 23 Ind. (h) Conwell v. Pumphrey, 9 Ind. 4; Wilson v. Fleming, 23 Ind. 119; 135; Knights v. Putnam, 3 Pick. 184; Newkirk v. Burson,2S Ind. 435; Smith Littell v. Hord, Hardin's R. 81; v. Muncie National Bank, 29 Ind. 158; Cutchen v. Coleman, 13 Ind. 568; Ho- llathburn r. Wheeler, 29 Ind. 601; sier v. Eliason, 14 Ind. 523; Butler r. McLaugblin v. The Citizens' Building, Myer, 17 Ind. 77. Loan and Savings Association, 62 Ind. (i) Johnston v. Dickson, 1 Blkf. 2o6. 204. (1) Forms of answer, Vol. 3, p. 400. XV.] ANSWER. 409 made a part of the answer for the purpose of showing the covenants." 1 And the answer must contain a statement of the facts constituting a breach of the covenants." 620. Of title and for quiet enjoyment. The mere want of title in the vendor is no defense in the absence of fraud, or such covenants as will make the want of title available as a breach. To constitute a breach of the covenant of warranty of title there must be an entire want of title, or an eviction under a paramount title. P An entire want of title in the vendor is not a good defense where the vendee is in possession under the deed, and has been put to incon- venience or expense on account of the defect of title. q In some of the cases it is held that an answer of entire want of title in the grantor may be a good defense against a personal judgment on the notes, but not against the foreclosure of the mortgage/ When the deed has not been made, but the note sued on is given in consideration of the conveyance of real estate at a time fixed, and that time has passed by, it is a good defense to the note that the plaintiff was not the owner of the real estate. 8 It is not sufficient in an answer to negative the covenants in the deed in general terms. The facts constituting the breach must be stated. It is held that such an averment would be good in a complaint for damages, but would only entitle the plaintiff to nominal damages, and in an answer which seeks to avoid the payment of the purchase-money it does not amount to a defense beyond the sum of one cent.* The defendant, being in possession under the deed, can not defend (m) Starkie v. Neese, 30 Ind. 222; Hacker v. Blake, 17 Ind. 97; Estep v. Galbreath v. McNealy, 40 Ind. 231; Estep, 23 Ind. 114; Mahoney v. Rob- Church v. Fisher, 40 Ind. 145; Wood- bins, 49 Ind. 146; Hooker v. Falson, 4 ford v. Leavenworth, 14 Ind. 311 ; Jen- Ind. 90. kinson v. Ewing, 17 Ind. 505. (r) Hubbard r. Chappel, 14 Ind. (n) Laughery v. McLean, 14 Ind. 601; Rogers v. Place, 29 Ind. 677; 106; Starkie v. Neese, 30 Ind. 222. Hanna v. Shields, 34 Ind. 84. (o) Laughery v. McLean, 14 Ind. (s) Gorham v. Reeves, 3 Ind. 83; 106; Starkie v. Neese, 30 Ind. 222; Small v. Reeves, 14 Ind. 163; Traster Church v. Fisher, 40 Ind. 145; Me- v. Snelson, Adm'r, 29 Ind. 96; Hanna Clerkin v. Sutton, 29 Ind. 407; Ma- v. Shields, 34 Ind. 84, 88; Leonard v. bony v. Robbins, 49 Ind. 146. Bates, 1 Blkf. 172. (p) Woodford v. Leavenworth, 14 (t) Martin v. Baker, 5 Blkf 232; Ind. 311 ; McClerkin v. Sutton, 29 Ind. Floom v. Beard, 8 Blkf. 76; Van Nest 407; Hannah v. Henderson, 4 Ind. 174; v. Kellum, lo Ind. 264; Jordan . Reasoner v. Edinundson, 5 Ind. 393. Blackmore, 20 Ind. 419; Hanna v. (q) Small v. Reeves, 14 Ind. 163; Shields, 34 Ind. 84. 410 ANSWER. [CIIAI'. against the payment of the purchase- money on the grouna of a partial failure of title." But the defense of an entire or partial want of title will be a suffi- cient answer, either in bar or as a partial answer, as the case may be, where possession has not been taken under the deed. v And it is held that, where there is an actual eviction from a part of the real estate, the defendant may plead the same as a partial defense. w But in this class ef cases it must be shown that the full amount due for the balance of the real estate has been paid. The answer must be limited to the amount that would be due for that part of the real es- tate from which the defendant has been evicted. T (1) 621. "What will amount to an eviction. Where the defend- ant must show an eviction, the question arises what will amount to such an eviction as will constitute a breach of the covenant of war- ranty. If the defendant has been actually deprived of possession by an action of ejectment establishing a paramount title, there can be no question of the right to defend on this ground. 7 The rule is thus stated : "A breach of this covenant is proved only by evidence of actual ouster or eviction ; but it need not be by force ; for if it appears that the coveuantee has quietly yielded to a paramount title, whether derived from a stranger or from the same grantor, either by giving up possession or becoming tenant to the rightful claimant, or has purchased the better title, it is sufficient." 2 But where the defendant relies upon an eviction where he has given up possession without a judicial proceeding, or has bought in the ad- verse title, he must show that such adverse title is paramount, not only to the title of his grantor, but to all other persons. 8 The mere exist- ence of a mortgage upon the real estate is not a breach of the covenant for quiet enjoyment. b 622. Covenant against incumbrances. It is not sufficient, as (ui Whistler r. Huiks, 5 Blkf. 100; 2 Greenl. Ev., 244; Hannah v. Hen- Stephfens v. Evans, Adm'r, 30 Ind. 39. derson, 4 Ind. 174; Reasoner, Adm'r, (v) James v. The Lawrenceburg v. Edmundson, 5 Ind. 393; Burton v. Ins. Co., 6 Blkf. 525. Reeds, 20 Ind. 87; Black v. Duncan. (w) Phillips v. Reichert, 17 Ind. 60 Ind. 522; Marvin r. Applegate, 18 120; Hoot v. Spade, 20 Ind. 326. Ind. 425; Crance v. Collenbaugh, 47 (x) Wiley v. Howard, 15 Ind. 169; Ind. 2-36. Traster v. Snelson's Adm'r, 29 Ind. 1)6. (a Crance r. Collenbaugh, 47 Ind. (y) Rhode v. Green, 26 Ind. 83. 256; Sheetz v. Longlois, 69 Ind. 491. (z) McClure v. McClure, 65 Ind. (b) Reasoner v. Edmundson, 5 Ind. 482; Sheetz v. Longlois, 69 Ind. 491 ; 393; Clark v. Lineberger, 44 Ind. 223- (1) Form of answer, p. 358. XV.] ANSWER. 411 a defense of a breach of a covenant against iucumbrances, to show that an incumbrance existed at the time the deed was executed: But the purchaser may pay off the iucumbrance, and defend against the payment of the purchase-money to the extent of the amount paid.' 1 And it is held that where the amount of the incumbrance exceeds the amount due on the purchase-money, the purchaser may enjoin the collection until the incumbrance is reduced to an amount not exceed- ing the purchase-money. e The purchaser may remove the mortgage before it is due and use the payment as a defense/ The fact that the purchaser had knowledge of the incumbrance will not affect his right to make the defense. g The facts stated in the answer must show that the incumbrance is a valid one and a lien upon the land. b (l) 623. Covenants in deed of general warranty. In this state it is unusual for the deed to contain separate and distinct covenants. The statutory form of conveyance contains a general warranty, and this form of deed is in general use. It is important, therefore, to deter- mine what covenants are contained in such a conveyance. The statute provides, after giving the form of the deed, that it shall be held to be "a conveyance, in fee simple, to the grantee, his heirs and assigns, with covenant from the grantor, for himself and his heirs and personal rep- resentatives, that he is lawfully seized of the premises, has good, rigid to convey the same, and guaranties tfie quiet possession thereof; that Hie same are free from all incumbrances, and that lie will warrant and defend the title to the same against all law/id claims." 624. Covenants of married women. It has been held in this state that a married woman could not be held liable by any of her covenants in a deed.-* But that where the deed for the separate real (c) Reasoner v. Edmundson, 5 Ind. (e) Buell v. Tate, 7 Blkf. 55. 393; Oldfield v. Stevenson, 1 Ind. 153; (f ) Snyder v. Lane, 10 Ind. 424. Pomeroy v. Burnett, 8 Blkf. 142. (g) Medler v. Hiatt, 8 Ind. 171 ; (d) Small v. Reeves, 14 Ind. 163; Burk v. Hill, 48 Ind. 52; Snyder v. Rodman v. Williams, 4 Blkf. 70; Buell Lane, 10 Ind. 424. r. Tate, 7 Blkf. 55; Smith v. Acker- (h) Cook v. Fuson, 66 Ind. 521. man, 5 Blkf. 541; Holman v. Creag- (i) R. S. 1881, 2927; Coleman v. miles, 14 Ind. 177; Kent v. Cantrall, Lyman, 42 Ind. 289; Carver v. Lo- 44 Ind. 452; Overstreet v. Dobson, 28 thain, 38 Ind. 530; Kent v. Cantrall, 44 Ind. 256; Bundy v. Ridenour, 63 Ind. Ind. 452. 406; Black i?. Coan, 48 Ind. 385; Cook (j) Aldridge v. Burlison, 3 Blkf. . Fuson 66 Ind. 521. 201 ; Griner v. Butler, 61 Ind. 362. (1) Form of answer, Vol. 3, p. 359. 412 ANSWER. [CHAP. estate of the wife was made by husband and wife jointly, the husband was liable on the covenants. 15 The present statute changes this rule and provides that the wife shall be " bound by her covenants of title." l This statute renders her liable on her covenants of title only. It does not change her liability upon other covenants that may be con- tained in the deed, and applies only to conveyances of her separate real estate. 625. Discharge in bankruptcy. That the defendant has been discharged under proceedings in bankruptcy must be specially pleaded. It has been held that where the bankrupt act excepts certain debts, the answer must show that the debt sued on is not within the exception. m But it was not necessary under the late bankrupt act that the answer should state the facts showing that he was properly and legally discharged. It is sufficient to plead his discharge in general terms." 626. Statute of limitations. The question as to the proper manner of raising the objection of the statute of limitations has been considered in a former chapter. It may be said, in addition, that the answer may be pleaded in general terms, e. g., "the plaintiff's cause of action did not accrue within six years before the bringing of this action." 627. The statute of frauds. It must appear from the complaint that the cause of action sued on is not within the statute of frauds. If not, the complaint is bad on demurrer.? It follows, from this rule, that the facts showing the contract to be within the statute of frauds need not be specially pleaded by way of answer. q 628. Fraud. Where the defendant relies upon fraud as a defense, the facts constituting the fraud must be specially pleaded. 1 " And the facts must be such as to show that he relied upon and was influenced by the fraudulent acts charged, if they are affirmative acts, and that he was (k) Griner v. Butler, 61 Ind. 362. Hazelrig, 45 Ind. 576; The Western (1) R. S. 1881, 5117. 5118. Union Tel. Co. v. Hopkins, 49 Ind. (m) Sorden v. Gatewood, 1 Ind. 107. 223; Suman v. Springate, 67 Ind. 115; (n) Hays v. Ford, 55 Ind. 52. McMillen v. Terrell, 23 Ind. 163. (o) Ante, g 307, 308, 309, and an- (r) Curry v. Keyser, 30 Ind. 214; thorities cited. Daniel v. Rowland, 30 Ind. 342; Ham (p) Ante, 514; Krolm v. Bautz, 68 v. Greve, 34 Ind. 18 ; Joest v. Williams, Ind. 277. 42 Ind. 565 ; Langsdale v. Girton, Ex'r, (q) Bliss' Code PI., 353; Fall r. 51 Ind. 99. XV.] ANSWER. 413 influenced by the fraud to enter into a contract that he would not otherwise have made. 8 A contract procured by fraud is not void but voidable, and if it has been executed wholly or in part by the opposite party it is necessary that the defendant should show that he has placed or offered to place the plaintiff in statu quo, by returning or offering to return what he has received on the contract. 1 629. Adverse possession of real estate. In actions to recover real estate the defense of title by adverse possession need not be spec- ially pleaded, as all defenses may be given in evidence under the gen- eral denial. In other cases, as in partition, where the question of title arises, a defendant may rely upon adverse possession, and in such cases the defense must be specially pleaded." An answer of adverse possession must allege the possession to have been held continuously for twenty years, and that it was exclusive and adverse. There is some confusion in the books as to the question whether the possession must be under color of title or claim of ownership. It was held in the earlier cases that the occupation must have been under a claim -of ownership in the premises, and that the claim must be under color of title.' In some cases the possession, to be adverse, must undoubtedly be under color of title. This has been held under the rule that a deed for real estate while in the adverse possession of a third party is void." But the later cases hold that, under the statute of limitations, the possession to be adverse need not be under color of title or claim of ownership^ This rule is based upon the statute of limitations, and applies to cases where the possession is set up as a defense under that statute ; but the general'rule is as first stated, that the occupancy must be un- der color of title. y The presumption of law is, that a party who holds (s) Hess. Young, 59 Ind. 379 ; Over v. Holley, 11 Ind. 2; Doe v. Herrick, v. Hitherington, 66 Ind.365; Neidefer 14 Ind. 242; Moore v. Worley, 24 v. Chastain, 71 Ind. 368. Ind. 81. (t) Joest v. Williams, 42 Ind. 565; (w) Moore v. "Worley, 24 Ind. 81; McGuire v. Callahan, 10 Ind. 128; Bauman t'.Grubbs, 26 Ind. 419; Steeple Haaseu. Mitchell, 58 Ind. 213. v. Downing, GO Ind. 478; Buckle v. (u) Winslow v. Winslow, 52 Ind. 8 ; Taggart, 62 Ind. 236. Sanford v. Tucker, /U Ind. 219. (x) Banman v. Grubbs, 26 Ind. 419; (v) Law v. Smith, 4 Ind. 56; Duev. Hargis ?.-. The Inhabitants of Congres?- Brown, 4 Ind. 143; Hearick v. Doe. 4 ional Township, etc., 29 Ind. 70. Ind. 1G4; Bell v. Longworth, -6 Ind. (y) Buckley v. Taggart, 62 Ind. 236. J7: 1 , ; Ball v. Cox, 7 Ind. 453; Wiggins 414 ANSWER. [CHAP. without right or claim of right holds in subservience to the legal owner. The rule is not uniform in the different states. In some it is held that, even under the statute of limitations, there must be an occupancy under a claim of right with color of title. 2 But in most of the states color of title is not necessary to constitute adverse possession, but the occupancy must be under a claim of owner- ship.* In others it is not necessary that the occupancy should be under a claim of ownership. 15 Where adverse possession is relied upon, under the statute of limita- tions, all the facts may be proved under the general plea of the statute. 630. Release or other discharge. A release or other discharge from liability is new matter that must be specially pleaded. And where a release of one party to a contract is pleaded by another jointly liable with him the same rule applies. But there are cases in which an answer of release by one defendant will inure to the benefit of an- other who makes no defense but suffers a default; e. g., it has been held that in an action against a principal and surety jointly liable, where the principal pleads and proves a release, no judgment can be taken against the surety who has suffered a default. 6 And the same rule has been applied to other joint obligations where the relation of principal and surety did not exist. d But it has been held that the release of an infant, by dismissing the action as to him, will not release the other joint contractor. 6 It is sufficient to show that a contract, not under seal, has been re- leased by parol. f And this rule has been applied to actions for libel. g But the release must be upon a valuable consideration. h O) (z) Ferguson v. Kenedy, 14 Am. (c) Thomas v. Wilson, 6 Blkf. 203. Dec. 761, 764, and note ; s. c., Peck, 321. (d) Thomas v. Wilson, 6 Blkf. 203 ; (a) See note to Ferguson v. Kenedy, Tuttle v. Cooper, 10 Pick. 281 ; Allen 14 Am. Dec. 764 ; La Frombois v. Jack- v. Wheatly, 3 Blkf. 332. son, 18 Am. Dec. 463, and note, p. 489; (e) Kirby ?-. Cannon, 9 Ind. 371. s. c., 8 Cow. 589; Munsbower v. Pat- (f) Devilin v, Ri^gsly, 4 Ind. 464 ; ton, 13 Am. Dec. 678; s. c., 10 Serg. & Leviston v. The Junction R. R. Co., 7 Rawle, 334; French v. Pearce, 21 Am. Ind. 597. Dec. 680, and note; s. c., 8 Cow.. 439; (g) Gabe v. McGinnis, 68 Ind. 538. Rung v. Shoneberger, 26 Am. Dec. 95, (h) Carter v. Zenblin, 68 Ind. 436; 102, and note; s. c., 2 Watts, 23. Harris v. Boone, 69 Ind. 300. (b) Bryan v. Atwater, 5 Am. Dec. (1) Forms of answers, Vol. 3, p. 396. 136, 142, and note; s. c., 5 Day, 181. XV.] ANSWER. 415 ANSWERS IN LIBEL AND SLANDER.(l) 631. Mitigation of damages. We have seen that, as a general rule in this state, matters in mitigation of damages may be given in evidence under the general denial.' This rule applies to actions for slander and libel.J But in this class of cases the defendant is authorized, by statute, to plead specially matters in mitigation, k and therefore such pleading is proper but not necessary. 1 The answer should not be pleaded in bar of the action." 1 632. Truth of the words. It is sufficient defense to the action to allege the truth of the matter charged, but the truth of the words can not be given in evidence under the general denial, either as estab- lishing a defense or in mitigation of damages." When the words set out in the complaint charge a specific crime against the plaintiff, it has been held sufficient to allege the truth of the words in general terms. But in the same case it is held that where the words charged are general the answer must be specific. The charge in the case cited was that the plaintiff was a whore. It was held that an answer alleging that she was of notorious bad character for chastity, and that the words were true, was bad as being too gen- eral. The mere allegation that the words spoken were true is not sufficient. The answer should contain affirmative allegations sufficient to show that the plaintiff was guilty of the offense imputed by the words charged, and that the words were true in the sense in which they are alleged to have been spoken. p The answer, if pleaded in bar of the action, must justify the ma- terial part of every set of words charged in the complaint." 1 But the answer may be pleaded to a part only of the words charged, (i) Ante, 580. (n) K. S. 1881, 373; Heilman v. (j) Henson v. Veatch, 1 Blkf. 369; *Shanklin, 60 Ind. 424; Henson v. Richardson v. Barker, 7 Ind. 567; Veatch, 1 Blkf. 369. Skillen v. Phillips, 23 Ind. 229; O'Con- (o) Sunman v. Brewin, 52 Ind. 140. ner v. O'Conner, 27 Ind. 69; Swinney (p) Downey v. Dillon, 52 Ind. 442; v. Nave, 22 Ind. 178; Blickenstaff v. Sunman v. Brewin, 52 Ind. 140; Perrin, 27 Ind. 527. Townsend on Slander and Libel, (k) R. S. 1881, \ 373. 215; DeArmond v. Armstrong, 37 (1) Jauch v. Jauch, 50 Ind. 135. Ind. 35. (m) Mouslerv. Harding, 33 Ind. 176; (q) Townsend on Slander and Libel, Wilson v. Barnett, 45 Ind. 163. 213. (1) Forms of answer, Vol. 3, pp. 389, 390. 416 ANSWER. [CHAP. and should be so pleaded where the truth of only a part can be estab- lished at the trial. r Where the answer is pleaded in bar of the entire cause of action, the evidence must establish the truth of all of the words, or the defense must-fail as one in bar ; but the evidence, if it strongly tends to es- tablish the truth of the words, and that the defendant from the plaint- iff's conduct had reason to believe them to be true, may be considered in mitigation of damages. 8 Under the plea of justification it may be proved in mitigation of damages that there was a general rumor that the plaintiff had been guilty of the crime imputed by the words charged.' 633. In tort generally. The rule in all actions for tort is the same as in libel and slander. Matters that go in mitigation of dam- ages only may be proved under the general denial as well as every fact that goes to negative the plaintiff's cause of action. 11 Matter in justification is new matter in confession and avoidance, and must be specially pleaded." Some of the authorities in this state can not be reconciled with this rule. It has been held that a grand juror may, under the general de- nial, prove that the words charged were spoken under 1 justifiable cir- cumstances, while acting as such." It is difficult to see upon what rule of pleading this decision can be justified. It is matter in bar by way of justification, and is clearly new matter. 634. What must be pleaded specially by executors and administrators. The statute regulating the settlement of decedents' estates, provides that when any action is transferred to the list of claims pending for trial, it shall not be necessary for the executor or adminis- ter to plead any matter by way of answer, except a set-off or counter- claim to which the plaintiff shall reply. * The executor or administrator may plead matters of defense specially, but it is unnecessary. (r) Townsend on Slander and Libel, (t) Heilmtin v. Shanklin, GO Ind. 424. 212; Tull v. David, 27 Ind. 377. (u) Ante, 580. (s) Byrket r. Monohon, 7 Hlkf. 83; (v) Pom. Rem., 704, 705. Landis v. Shanklin, 1 Ind. 92; Heil- (w) Hunter r. Mathis, 40 Ind. 356. man v. Shanklin, 60 Ind. 424. (x) R. S. 1881, 2324. XV.] ANSWER. 417 ANSWERS THAT MUST BE VERIFIED. 635. Non est factum. Answers that must be sworn to are mostly in abatement, and such have been considered. y The defense of non e*t factum has been partially considered in treat- ing of the general denial. 2 It has been held that the general denial sworn to is, in effect, the de nial of the execution of the instrument, but such pleading should not be encouraged. It is sufficient to deny, in general terms, the execu- tion of the instrument. This is true where it is claimed that the writ- ten instrument was never delivered, although signed by the party, or where it is claimed that the instrument has been materially altered. Under a general plea of non est factum, it is competent to prove every fact tending to show that the instrument as sued upon Avas not executed by the party sought to be Charged. a It is said by Mr. Iglehart that the defendant may, under a plea of non est factum, defeat the action by proving coverture, idiocy, lunacy, or fraud and deceit in procuring the execution. No authority is cited to establish the proposition that evidence of fraud or deceit in procur- ing the execution of the instrument is competent under the plea of non et factum. It must be regarded as very bad pleading to rely upon a denial of the execution of a writing as sufficient to put in issue the question of fraud or deceit ih procuring its execution. If such evi- dence is competent, it must be upon the ground that to prove that a writing was procured by fraud is to prove that it was not executed. If so, an answer of fraud, being a denial of the execution of the instru- ment, must necessarily be verified to render it sufficient. Fraud in the procurement of the execution of the contract is clearly new matter that must be specially pleaded, and the facts constituting the fraud must be stated. b To allow proof of fraud under a general plea of non est factum would be a plain violation of this rule. c Although the defendant may prove under the general plea of non e#t factum any fact tending to show that the instrument sued upon was not executed by him, he may, nevertheless, plead the facts specially, and (y) Ante, 563 et seq. Huston r. Williams, 3 Blkf. 170; Johns (z) Ante, 583. v Harrison, 20 Ind. 317; Hill v. Jones, (a) Iglehart's Prac. 59, 60, 37, 38. 14 Ind. 389; Byers r. Daugherty, 40 (b) Ante, 628. Ind. 198; Kimble v. Christie, 55 Ind. (c) Thomas r. Ruddell, 66 Ind. 326; 140. 27 418 ANSWER. [CHAP. if the facts stated are sufficient to show that he did not execute the instrument it is sufficient. Either form of pleading is proper. d But whether the answer is general, or states the facts specially, it must be verified. 6 The answer is good, however, without verification. It is good as a general denial, but does not put in issue the execution of the in- strument/ and the want of verification can not be reached by de- murrer. g 636. Non est factum by executors and administrators. The rule that an answer denying the execution of an instrument made the foundation of the action must be sworn to, does not apply to ex- ecutors* and administrators where the action is brought upon a writing purporting to have been executed by the decedent. 11 And, under the present decedents' act, as tbje qxecutor or adminis- trator is not required to plead specially any thing except a set-off or counterclaim, the execution of the instrument may be controverted without any pleading.' 637. No answer in proceedings supplementary to execu- tion. The statute regulating proceedings supplementary to execution provides that, after the order has been made requiring parties to ap- pear and answer, the proceedings shall be summary, without further pleadings, upon the oral examination and testimony of parties and witnesses.-* It has been held, in a number of the earlier cases, that no pleadings were contemplated by the former statute, and that none were proper. k (d) Henry v. Coats, 17 Ind. 161; (g) Newby r. Rogers, 54 Ind. 193. Bowers r. Briggs,20 Ind. 139; Coburn (h) Hunter r. Probst, 47 Ind. 359; r. Webb, 56 Ind. 96; The State v. Barnett's Adm'r v. The Cabinet Mak- Blair, 32 Ind. 313; Evans v. The ers' Union, 28 Ind. 254; Cawood's Southern Turnpike Co., 18 Ind. 101 ; Adm'r v. Lee, 32 Ind. 44; Eiser v. Johns ?:. Harrison, 20 Ind. 317. Snoddy, 7 Ind. 442; Mahon's Adm'r (e) E. S. 1881, 364; Bradley r.The v. Sawyer, 18 Ind. 73. Bank of the State of Indiana, 20 Ind. (i) Ante, 634. 528; Hooker t>.The State, 7 Blkf. 272; (j) R. S. 1881, 815 et seq. Belton v. Smith, 45 Ind. 291. (k) Coffin v. McClure, 23 Ind. 356; (f) McNeert). Dipboy, 14 Ind. 18; Carpenter v. Vanscotten, 20 Ind. 50; Magee r. Sanderson, 10 Ind. 261 ; Hill Cooke v. Ross, 22 Ind. 157; Iglehart's r. Jones, 14 Ind. 389; Unthank v. The Prac. 336, 43. Henry County Turnpike Co., 6 Ind. 1-25; Byers r. Daugherty, 40 Ind. 198. XV.] ANSWER. 419 But these cases have been practically overruled by later decisions, in which it was held that pleadings might properly be filed and issues formed and decided, as in other cases. 1 The present statute changes this rule. ANSWERS PUIS DARREIN CONTINUANCE. 638. "When and how pleaded. The defendant may, after the cause has been put at issue, plead a defense which did not exist at the time when he was called upon to plead. The answer may be either in abatement or in bar. m The sufficiency of the answer is governed by the same rules as other answers, but it should be shown on the face of the pleading that the defense has accrued since the last continuance. The rule at common law was, that a plea puis darrein continuance was an abandonment of all former defenses, but this is not the rule under the code. But, un- der the present statute, if the answer is in abatement it must amount to a withdrawal of the answers to the merits, as the answer in abate- ment must be first tried and determined." A contrary doctrine is laid down by Mr. Iglehart in his work on Practice, but, as the code then stood, answers in abatement and to the merits were tried together, and the answer, whether in abatement or in bar, might be regarded as a supplemental pleading. (1) Kouth v. Spencer, 30 Ind. 348; Howes, 68 Ind. 458; McMahan v. Fillson v. Scott, 15 Ind. 187; Banty v. Works, 72 Ind. 19; ante, 547. Buckles, 68 Ind. 49; The Toledo, Wa- (m) Iglehart's Prac. 66. bash and Western Kail way Co. v. (n) R. S. 1881, 365. (o) Iglehart's Prac., p. 67, 68. SET-OFF COUNTERCLAIM. [CHAP. CHAPTER XVI. SET-OFFCOUNTERCLAIM. SECTION. SET-OFF. 639. The statute. 640. Nature of set-off. 641. Only allowed in actions for money demands on contract. 642. May be pleaded where plaintiff treats tort as contract. 643. The set-off must consist of matter arising out of debt, duty, or con- tract. 044. Tort may be treated as contract, and pleaded as a set-off. 645. Damages need not be liquidated. 646. Demands must be mutual. 647. Exception to rule that demands must be mutual; suretyship. >48. Where plaintiff holds claim sued on as trustee, defendant may set off demand existing in his favor against the cestui que Irust. 649. Set-off may be pleaded against assignee. 650. Rule where note sued on is gov- erned by the law-merchant. 651. Set-off must be .of a subsisting debt held by defendant at the time suit is commenced. 652. Claim barred by statute of limita- tions may be pleaded. 653. Surety may pay debt of principal and use the same as a set-off. 654. May be pleaded by and against executors and administrators. 655. Must be due when offered. 656. Right of set-off between banks and depositors. 657. Set-off can not be pleaded against married women. SECTION. 658. Character of indebtedness must be shown by tike pleading. 659. May waive set-off and bring an independent action. 660. Set-off can not be pleaded against taxes. 661. Pleading need not answer the whole complaint. 662. Judgment may be set off against judgment. 663. Judgment may be pleaded as a set-off in an action on note or other indebtedness. COUNTERCLAIM. 664. The statute. 665. Construction of the statute. 666. Recoupment merged in counter- claim. 667. Counterclaim must arise out of or be connected with the plaintiff's cause of action. 668. Must be in favor of the defendant pleading it. 669. Surety can not plead coun terclaim in favor of principal. 670. Part of defendants may plead counterclaim. 671. Must be against the plaintiff. 672. Must impair, affect, or qualify the plaintiff's right to relief. 673. Cause of action in plaintiff need not be admitted. 674. Equitable cause of action may be pleaded. 675. Counterclaim must exist when the action is commenced. 676. Tort can not be pleaded as coun- terclaim. XVi.j SET-OFF COUNTERCLAIM. 421 677. Pleading can not perform double 680. Mut plead cause of action as a office of answer and counter- counter-claim, or pay cost of claim. subsequent action thereon. 678. Will be construed to be either an- 681. Dismissal of original complaint swer or counterclaim, according does not affect counterclaim, to the facts stated. 682. Cross-complaint unknown to the 679. Demurrer to pleading as an an- code. swer does not reach defects therein as a counterclaim. 639. The statute. " Sec. 348. A set-off shall be allowed only in' actions for money demands on contract, and must consist of matter arising out of debt, duty, or contract liquidated or not, held by the de- fendant at the time the suit was commenced, and matured at or before the time it is offered as a set-off. "Sec. 349. In all actions, upon a note or other contract, against several defendants, any one of whom is principal and the others sureties therein, any claim upon contract in favor of the principal de- fendant, and against the plaintiff or any former holder of the note or other contract, may be pleaded as a set-off by the principal or any other defendant." 8 640. Nature of set-off. The codes of the different states differ materially as to the right of set-off. In some of the states set-off, as such, is not recognized, but what our statute defines as a set-off is in- cluded in the general definition of a counterclaim. b In those states where no set-off is provided for in terms there are two classes of counterclaims, one of which corresponds very nearly to our set-off. There is a sufficient difference in the language of other codes and the code of this state to render the adjudicated cases of other states of but very little value in determining the construction to be given to our statute or the practice thereunder. Set-off was unknown to the common law. The right to plead a set-off, and the cases in which it is allowed, must be gathered from the statute and decided cases under it. Strictly speaking a set-off is not a defense. While its effect is to pre- vent a recovery by the plaintiff, either in whole or in part, this is done, not by attacking or disproving the plaintiff's cause of action, but by setting up an independent cause of action in favor of the defendant, the effect of which is to reduce the amount of the plaintiff's recovery. (a) R. S. 1881, gj} 348, 349. roy's Rem., 581, 726, and notes; (b) Throops' N. Y. Code, gj} 500, 501 ; Lovejoy v. Robinson, 8 Ind. 399. Bliss' Code PI., g 369 et seq. ; Pome- (c) Pom. Rem., g 726 et seq., and au- thorities cited. 422 SET-OFF COUNTERCLAIM. [CHAP. Thus far it may be regarded as in effect a defense. But the right of ^et-off proceeds farther, and entitles the defendant to recover where the amount of his demand exceeds that of the plaintiff. The earlier statutes and decided cases treated set-off purely as a defense to be proved under the plea of payment, but the defendant was entitled to recover any balance found to be due him. d But the later cases under the present statute treat the pleading as a complaint the sufficiency of which must be determined as if the same were an original cause of action. e This must be subject, however, to the limitations and restrictions un- der which the right of set-off may be resorted to, and to certain ex- ceptions that are hereafter to be considered. 641. Only allowed in actions for money demands on con- tract. This clause of the statute relates exclusively to the plaintiff's cause of action, and not to the demand pleaded as a set-off. The plaintiff's cause of action must be a " money demand on contract " to entitle the defendant to plead a set-off, no matter what the defendant's cause of action may be. f An action for " money demand on contract " is defined by statute to be an "action arising out of contract where the relief demanded is a recovery of money." 8 Unless the plaintiff's complaint brings his cause of action within this definition, there can be no right to plead a set-off. There is one decided case not in harmony with this rule, 11 where it was held that in an action for the wrongful conversion of money col- lected by an attorney, he might recover fees for his services by way of set-off. But the rule is clearly established by the weight of authority. Where the plaintiff joins in separate paragraphs actions on contract and in tort, the defendant may plead a set-off to the cause of action on contract. 1 642. May be pleaded where plaintiff treats tort as con- (d) Statute, 1817, p. 41; Hamilton Collins v. Groseclose, 40 Ind. 414; Boil v. Noble, 1 Blkf. 188; Jones v. Me- v. Simms, 60 Ind. 162; Allen v. Kan- Grew, 1 Blkf. 192; Coe v. Givan, 1 dolph, 48 Ind. 496; Myers v. The State, Blkf. 367; Hanna v. Ewing, 3 Blkf. 45 Ind. 160. 34; Young v. Harry, 4 Blkf. 167; (g) Ante, 326; R. S. 1881, 1285; Hurd v. Earl, 4 Blkf. 184. The Indianapolis & Cincinnati R. R. (e) Boil v. Simms, 60 Ind. 162; Ken- Co. v. Ballard, 22 Ind. 448. edy v. Richardson, 70 Ind. 524; Vol. (h) Judah v. Trustees of Vincennes 3, p. 403 et seq.; Wills v. Browning, 96 University, 16 Ind. 5(5. Ind. 149. (i) Ross v. Faust, 54 Ind. 471. (H The Indianapolis and Cincinnati B. R. Co. v. Ballard, 22 Ind. 448; XVI.] SET-OFF COUNTERCLAIM. 423 tract. I have shown that in bringing his action the plaintiff may waive the tort in some cases and sue as upon an implied contract. " Where the plaintiff makes his election to treat the cause of action as ex contractu, and sues upon it as such, the defendant may plead a set-off as in other cases. k 643. The set-off must consist of matter arising out of debt, duty, or contract. This limitation applies to the defendant's cause of action, and although the plaintiff's demand may be such as would authorize the defendant to plead a set-off, the right does not exist, unless the matter upon which the right is claimed consists of matter arising out of debt, duty or contract. Under this provision it is well settled by authority that a tort can not be pleaded as a set-off in any case, whether the plaintiff's action is for a tort or upon cou tract. 1 The statute as applied to the defendant's cause of action is broader than that of the plaintiff. It is not confined to contracts. His cause of action may arise out of a debt or duty. The term debt has a fixed and determinate meaning and may be well understood, but what is meant by "duty" is not at all clear. The supreme court has decided, however, what meaning shall be attached to the word as used in the statute. m The court say : " It is claimed that every right to damages for a tort arises out of the duty of the wrong-doer to pay damages, and hence, that such damages may be answered by way of set-off. But we think this proposition is founded in too broad a definition of the word duty, as used in the statute referred to. Indeed, the word duty has no known legal signification as used in the statute of set-off, or as defining a cause of action. What was meant by it as used is not evident to a man of common understanding. But we think it should be held to relate to causes of action arising ex contractu upon implied obligations, and such as may arise by operation of law, etc. See 1 Par. on Cont., p. 4 ; and not to those arising ex delicto, unless ,where the tort may be and is waived and implied assumpsit relied upon. Perhaps in this lat- (j) Ante, 355. Co. v. Eallard, 22 Ind. 448; Harris v. (k) The Indianapolis and Cincin- Kivers, 53 Ind. 216; Zeigelmueller v. nati R. R. Co. v. Ballard, 22 Ind. 448, Seamer, 63 Ind. 488; Shelly v. Van- 451; Thompson r. Keisel, 30 X. Y. arsdall. 23 Ind. 543; Rohack v. Powell, 383; Gordon v. Bruner, 49 Mo. 570; 36 Ind. 515. Pom. Rem., 772. (m) The Indianapolis and Cincin- (1) Lovejoy r. Robinson, 8 Ind. 390 ; nati R. R. Co. r. Ballard, 22 Ind. 448. The Indianapolis and Cincinnati R. R. 424 SET-OFF COUNTERCLAIM. [CHAP. ter class of cases, set-off might be made available. We think such should be the sense given to the word duty in the statute of set-off." The cases in which the right of set-off has been recognized under the present statute have treated the statute with considerable liberality. It has been held that in an action on a promissory note the defendant may plead as a set-off that the plaintiff is indebted to him for docket fees as district attorney." And where the purchaser of real estate has been compelled to pay incumbrances upon the real estate, he may offset the amount against a claim for the purchase-money. But not where he accepts a deed without covenants. 13 Taxes paid on real estate by an occupant or tenant may be offset in an action against him for rent. q But this is by virtue of a special statute/ The tenant can not set off the value of improvements voluntarily made. 8 In an action against a guardian on his bond, he niay recover as a set-off for board or clothing furnished his ward, and for services ren- dered by him as such guardian, and the sureties may take advantage of such indebtedness as a defense.* In an action against the guardian by a third party, for board and clothing for the wards, he may set off the value of the ward's ser- vices." In an action against an attorney or agent, for money collected by him, he may set off an amount due from the principal to him on a note. T 644. Tort may be treated as contract, and pleaded as set-off. The question whether a defendant may waive a tort, and plead the cause of action as a set-off, is not well settled. w It is per- mitted in Kentucky. 1 In New York it is held the other way. y No reason is apparent why the defendant should not have the right to plead a matter as a get-off where he could sue upon it as arising ex contractu in an independent action. Under our practice the pleading in set-off is, in effect, a new cause (n) Law v. Vierling, 45 Ind. 25. (u) Lewis r. Edwards, 44 Ind. 333. (o) Swindell r. Kichey, 41 Ind. 281. (v) Noble v. Leary, 37 Ind. 186. (p) Athertcm v. Toney, 43 Ind. 211. (w) Bliss' Code- Pi., \ 381. (q) Grossman v. Lauber, 29 Ind. 618. ix) Eversole v. Moore, 3 Bush. 49; (r) R. S. 1881, I 6452. Haddix v. Wilson, 3 Bush. 527. (s) Grossman v. Lauber, 29 Ind. 618. (y) Chambers v. Lewis, 11 Abb. Pr. (t) Myers v. The State, 45 Ind. 160; 210. The State v. Clark, 16 Ind. 97. XVI.] SET-OFF COUNTERCLAIM. 425 of action on the part of the defendant, and is so treated by the later cases ; z and where the defendant, in his pleading, elects to treat his cause of action as an implied contract, it must be so considered for the purposes of the action. If it is, in fact, a cause of action upon con- tract, it falls within the statute, and should be regarded as a proper set-off. 8 The pleading should clearly show a waiver of the tort to entitle the defendant to relief. b 645. Damages need not be liquidated. Under the earlier statutes and decided cases, in order to entitle a defendant to plead a set-off his demand must have been for a liquidated amount. 6 But the present statute applies expressly to demands, whether liquidated or not. d The rule that unliquidated demands may be set off has been applied to such demands between partners where the partnership has been dis- solved. 6 646. Demands must be mutual. As a rule, only demands be- tween the plaintiff and defendant can be set off. This rule is enforced where defendants are sued jointly. Neither can set off a demand due from the plaintiff to him alone, nor can a defendant sued alone set off the plaintiff's debt to the defendant and another/ It was held in an early case that a defendant holding a joint and several note against the plaintiff and another, might plead the same as a set-off against the plaintiff. 8 The authority is based upon the ground that, as the note was several, it was the individual indebtedness of the plaintiff, upon which he might have been sued alone, and that there- fore the note was a legitimate set-off against him alone. h (z) Ante, 640. 146; Wells r. Teal, 5 Blkf. 306; (a) Pom. Kern.. 801. Woods c. Harris, 5 Blkf. 685; Carter (b) Shelley v. Vanarsdoll, 23 Jnd. r. Berkshire, 8 Blkf. 193pMcCarty v. 543. Mewhinney, 8 Ind. 513; Johnson v. (c) Jones v. MoGrew, 1 Blkf. 192; Kent, 9 Ind. 232; Blankenship v. Rog- McKinney r. Bellows, 3 Blkf. 31; ers, 10 Ind. 333; Bone v. Watson, 13 Smith v. Smith, 1 ln. Conn, 25 Ind. 425; Goldthwaite v. (t) Hankins r. Shoup, 2 Ind. 342. Bradford, 36 Ind 149; Hoffman v. (u) Chandler v. Drew, 26 Am. Dec. Zollinger, 39 Ind. 401. 704, 709, and the authorities cited in (r) Dodge v. Dunham, 41 Ind. 18G; the note; s. c., 6 N. H. 469. post, 691. (v) Hereth v. The Merchants' Na- (s) Hereth v. The Merchants' Na- tional Bank, 34 Ind. 380, 384; Hascall tional Bank, 34 Ind. 380; Hall v. Al- v. Whitmore. 19 Me. 102; Smith v lli?cook. 14 Mo. 449. XVI.] SET-OFF COUNTERCLAIM. 429 651. Set-off must be of a subsisting debt held by defend- ant at the time suit is commenced. There are authorities hold- ing, in general terms, that the defendant can not plead as a set-off mat- ters upon which he could not maintain an action against the plaintiff. This is true, as a general rule. w There must, of necessity, be an indebtedness in favor of the defendant against the plaintiff, or against the real party in interest for whom he sues, and it must be a subsisting indebtedness at the time the suit is commenced. 1 Prior to the enactment of the code, a demand that could be enforced in a court of chancery could not be set off in a court of law. It must be a demand that could be enforced by an action at law, or it was not the subject of set-off. y Under the code there is no distinction between actions at law and proceedings in equity, and, therefore, this rule does not now obtain. The defendant must be the owner of the debt. If it has been as- signed to him to be used as a set-off, and if not so used to be returned to the assignor, it is not a valid set-off. z The doctrine that the defendant must have a cause of action upon which he could maintain a suit against the plaintiff, is subject to ex- ceptions, which will be considered in the following sections. 652. Claim barred by statute of limitations may be pleaded. A defendant could not maintain an action on a claim barred by the statute of limitations. This does not prevent him from pleading it as a set-off. But he can not recover upon the demand. It can only be used as a defense to the extent of the plaintiff's cause of action. This is specially provided by statute. 3 653. Surety may pay debt of principal and use the same as a set-off. The surety may pay the debt of his principal, and in an action by the principal against him may plead the amount thus paid as a set-off. b But the surety can not pay the principal's debt before it is due, and thus make it a valid set-off before its maturity. Where he pays the (w) Shearman v. Fellows, 5 Blkf. 450; (z) Straus v. Eagle Ins. Co., 5 O. P. Fellows v. Kress, 7 Blkf. 59; Adams r. 59 ; Claflin v. Dawson, 58 Ind. 408. Ilodarmal, 19 Ind. 339; Gre^s; r. (a) R. S. 1881, 367; Livingood v. James, 12 Am. Dec. 151; Elmer r. Livingood, tj Blkf. 268; Foxu..Barker, Crum, 8 Ind. 25. 14 Ind. 309; Fankboner . Fankhoner, (x) 11. S. 1881, g 348; Balser v. 20 Ind. 62; Renniek v. Chandler, 50 Wood, 69 Ind. 122. Ind. 354; Armstrong v. Caesar, 72 Ind. (y) Morrison v. Gliddon, 7 Ind. 561 ; 280. Woodruff v. Clark, 6 Blkf. 337. ( b) Turner v. Campbell, 59 Ind. 279. 430 SET-OFFCOUNTERCLAIM. [CHAP. debt before it is due he may plead the amount as a set-off after the maturity of the original debt. c In order to make it a valid set-off he must have paid the debt be- fore the commencement of the suit in which the set-off is pleaded.* 1 Our statute provides: "Sec. 352. When cross-demands have ex- isted between persons under such circumstances that one could be pleaded as a counterclaim or set-off to an action brought upon the other, neither can be deprived of the benefit thereof by the assign- ment or death of the other, and the two demands must be deemed compensated so far as they equal each other." e Under this statute the cross-demands must exist at the time of the death of one of the parties, and the surety can not create a demand in his favor by paying the principal's debt after his death and plead the same as a set-off. His only remedy in that case is to file his claim- against the estate of the principal, and share in the general assets/ 654. May be pleaded by and against executors and admin- istrators. An executor or administrator being a trustee suing for a debt due the estate, the defendant may plead a set-off held by him against the decedent, and the same right exists in favor of such ex- ecutor or administrator. 8 But in order that a debt may be pleaded as a set-off against the ad- ministrator or executor, it must have existed at the time of the death of the decedent. It has been held, therefore, that where the suit is brought by the administrator or executor upon a debt due the decedent in his lifetime, the defendant can not set-off a debt due him from the estate contracted since the decedent's death. h It is equally well settled that where the administrator or executor brings an action to recover a debt due him, as such, contracted after the death of the decedent, the defendant can not plead as a set-off a debt due him by the decedent in his lifetime. 1 It has been held that in an action by a sole devisee on an indebted- ness received by him through the testator, the defendant can not set-off (c) Jackson v. Adamson, 7 Blkf. 597. (g) R. S. 1881, ? 252, 2291, 2324; (d) Balser v. Wood, 69 Ind. 122; Schoonover v. Quick, 17 Ind. 196; Convery v. Langdon, 66 Ind. 311. Skillen v. Jones, Adm'r, 44 Ind. 136; (e) R. S. 1881, I 352. Henderson v. Whittinger, 56 Ind. 131; (f) Convery v. Langdon, 66 Ind. Vol.3, p. 405; Carter v. Compton, 79 311; Granger v. Granger, 6 Ohio, 35; Ind. 37. Mercein v. Smith, 2 Hill, 210; Water- (h) Convery r. Langdon, 66 Ind. 311. man on Set-off, 197. (i) Dayhuff r. Dayhuff's Adm'r, 27 Ind. 158; Harte v. Houchin, 50 Ind. 327 XVI.] SET-OFF COUNTERCLAIM. 431 an indebtedness of the estate contracted since the testator's death, with- out showing that he has filed his claim against the estate or that the estate has been finally settled. j Where the administrator sues the defendant on a note given for the purchase-money for real estate sold by him as such administrator, the defendant may set-off the taxes due on the real estate before the death of the intestate, but not the taxes that have accrued since his death. k 655. Must be due when offered. The set-off, we have seen, must be of a debt existing at the time the action is commenced. 1 But it is not necessary that it should be due at that time. The stat- ute provides that the set-off must be due at the time it is " offered." m Whether it is meant that the debt must be due when it is pleaded or when it is offered in evidence, may admit of some doubt. The su- preme court has held in one case that the statute applies to the time the set-off is offered in evidence, and not when it is pleaded." The court say : " The statute evidently has reference to two points of time, viz., the commencement of the suit and the time the matter is offered in the suit by the defendant as a set-off. It contemplates that these two acts will naturally be performed at different times. The point of time at which the set-off is offered is certainly a later one than the commencement of the suit ; for at that time the defendant offers no matter as a set-off. ' ' When in the progress of Hie cause is this second point of time ? "This is the question to be determined. Is it when the set-off is pleaded or wlien it is offered in evidence on the trial ? We think when it is offered in evidence and for these reasons : "1. If a time is taken later than the commencement of the suit, no reason can be assigned why it should be any other than the time of the trial. " 2. We think that the more equitable point of time. If a defendant, at the commencement of a suit, has a set-off against the plaintiff which will mature before the time of trial, the plaintiff ought to liquidate the amount of that set-off upon his claim before he sues. The policy of the law should be to avoid multiplicity of suits. But there is great justice in limiting this right of set-off to claims held by the defendant at the commencement of the suit, because it would work a hardship upon the plaintiff to be compelled on the trial to allow a set-off pro- (j) Tracewcll v. Peacock, 55 Ind. (1) Ante, 651. 572. (m) Ante, 639. (k) Henderson . Whittinger, 56 (n) Shannon r. Wilson, 19 Ind. 111'. Tnd. 131. 432 SET-OFF COUNTERCLAIM. [CHAP. cured afterward of which he must necessarily have been ignorant and in no wrong for not crediting upon his account before suit, and which might defeat a suit justly commenced whereby he would be mulct in costs." It must be admitted that the reasoning of the court is not very co- gent, but the point is directly decided. In a later case the supreme court say it is sufficient if the debt is due at the time it is pleaded, but the question was not before the court, and, as a mere dictum, it should have no weight against the earlier de- cision, where the matter was thoroughly considered. The requirement that the debt shall be due when offered as a set-off is subject to exception. A court of equity will interpose by permiiting a party to set off an amount not yet due where the plaintiff is insolv- ent. This can only be done where it would work a fraud upon the defendant to refuse to permit the defense to be made. The equitable rule is thus stated : " In that case the plaintiff evidently labored under the belief, as he does in this, that the set-off could not be compelled until the maturity of his outstanding note, and it is now argued in his behalf that the previous suit was brought too soon to obtain the set-off, in as much as the note was not then due, and that the most that could have been then accomplished was to prevent a transfer of the note with a view of compelling a set-off at its maturity. We can not concur in that proposition. It may be generally true that a party can not be com- pelled to receive payment upon a debt until its maturity. Ordinarily, there could be no object in requiring it, and sometimes injustice would be done by doing so. But where satisfaction has in fact been made before the debt becomes due and no injustice can result from settling the fact, courts of equity, for the purposes of justice, have not hesitated to determine it by decree. In compelling an equitable set-off, the court proceeds upon the ground that one demand is, pro tanto, a satisfaction of the other, and that the real indebtedness is merely the balance. All matters of interest can be arranged upon just principles, so as to avoid injury. " p It has been held that the right of set-off against administrators or ex- ecutors can not be affected by the solvency or insolvency of the estate. q 656. Right of set-off between banks and depositors. In the case of a general deposit in a bank, the bank and the depositor (o) Convery v. Langdon, 66 Ind. 311. (q) Convery v. Langdon, 66 Ind. (p) Keightly v. Walls, 27 Ind. 384, 311, 3 1 5. 387; Lindsay r. Jackson, 2 Paige, 581. XVI.] SET-OFF COUNTERCLAIM. 433 are regarded as debtor and creditor, 1 " and where the depositor is in- debted to the bank the parties are mutually entitled to set off one debt against the other, as in other cases. The authorities are that this may be done when either the bank or the depositor becomes insolvent. 8 But the right of set-off dors not apply to a special deposit, where the bank is to return the specific article deposited. In such case the rela- tion cf debtor and creditor does not exist. The bank is merely a bailee without hire, and is bound to return the very thing deposited, and the right of set-off does not exist.' The same is true where the deposit is made for a specific purpose. It can not be diverted from that perpose to be used as a set-off by the bank." Deposits in savings banks stand upon an entirely different footing, The relation of debtor and creditor does not arise from the deposit, but that of trustee and cestui qiie trust; therefore no right of set-off can grow out of the transaction. T 657. Set-off can not be pleaded against married women. I have shown that a pleading setting up matter of set-off is, in ef- fect, a complaint." This being the case, an indebtedness claimed as a set-off can not be pleaded against a married woman, even to the extent of her demand, unless it is such a cause of action as could be enforced against her in an independent action. x 658. Character of indebtedness must be shown by the pleading. Like particularity should be required in pleading matter of set-off as in other cases. It can not be proved under the general (r) Coffin v. Anderson, 4 Blkf. 395; Nat. Bank Reg. 420; Demmon v. R. S. 1881, I 2G87. Boylston Bank, 5 Cush. 194. (s) In the matter of the Franklin (t) In the matter of the Franklin Bank, 19 Am. Dec. 413, 420; s. c., 1 Bank, 19 Am. Dec. 413, 423, and au- Paige Ch. 249; citing Matter of Van thorities cited in the note; Coffin v. Allen, 37 Barb. 225; Receiver of the Anderson, 4 Blkf. 395; The Bank of New Amsterdam Savings Bank v. the State v. Burton, 27 Ind. 426; The Tartter, 54 How. Pr. 385; Colt v. State r. Clark, 4 Ind. 315. Brown, 12 Gray, 233; Clark v. Hawk- (u) Wilson v. Dawson, 52 Ind. 513. ins, 5 R.I. 219; Finnell v. Nesbit, 16 B. (v) In the matter of the Franklin Mon.351;Plattv.Bentley,ll Am. Law Bank, 19 Am. Dec. 424, note; R. S. Reg. 171 ; McCagg v. Woodman, 28 111. 1881, 2703 et seq. 84; Jones v. Robinson, 26 Barb. 310; (w) Ante, 640. Ex parte Howard National Bank, 16 (x) Sanfordr. Wood, 49 Ind. 165. 28 434 SET-OFF COUNTERCLAIM. [CHAP. denial, nor under a plea in bar, but must be specially pleaded as a cause of action. y The facts should be stated showing the character of the indebtedness, so that it may appear to be such an indebtedness as may be pleaded as a set-off. z Where the indebtedness is evidenced by a written instrument the writing must be made a part of the pleading, 8 and where an account is sued upon a bill of particulars must be given. b The rule that set-off must be specially pleaded applies to justices' courts. 659. May -waive set-off and bring an independent action. The defendant is not bound to use his cause of action as a set-off. He may waive his right to plead a set-off, and bring an independent action against the plaintiff. d If he elects to bring an action he can not plead the same indebted- ness as a set-off while the action is pending. 6 660. Set-off can not be pleaded against taxes. It is the well-settled rule that a set-off will not prevail against taxes levied for local or general govermental purposes/ 661. Pleading need not answer the -whole complaint. It is held that an answer which professes to avoid the whole complaint, and amounts to only a partial defense, is bad. 8 This rule was applied to a set-off in some of the earlier cases. h The pleading is not an answer in bar, and the later cases hold that it is not bad for not answering the whole complaint when it assumes to be a complete defense.' 662. Judgment may be set off against judgment. The right to set off mutual judgments rests upon different grounds from that of mutual demands on contract. The right does not depend upon (y) Brown v. The College Corner, Blkf. 506; Rankin v. Harper, 4 Ind. etc* Gravel Road Co., 56 Ind. 110. 585. . v. Mildridge, 5 Ind. 176; Houstin t; (i) McKinney v. Springer, 3 Ind. 59. Young, 7 Ind. 200. (j) Epperly v. Baily, 3 Ind. 72; XVI.] SET-OFF COUNTERCLAIM. 439 recoupment is included in the definition of a counterclaim, and the su- preme court has so decided in express terms. k The cases which recognize the defense of recoupment as still existing only tend to confusion ; as such matter as formerly authorized the de- fense of recoupment now constitutes a counterclaim, a cause of action and not a defense. (1) 667. Counterclaim must arise out of or be connected with the plaintiff's cause of action. The proper construction to In- given to this limitation in the definition of a counterclaim has given rise to much litigation. No fixed rule can be established by which it can be determined whether the particular matter pleaded is so nearly connected with the cause of action as" to fall within the meaning of the statute. In an early case this question was presented to the supreme court, and an attempt was made to fix a definite rule by which to de- termine whether a given case was within the statute or not. 1 The court, after quoting the statute, say: " The question is, what is the legal effect of the words ' arising out of or connected with ?' Do they refer to those matters which have an immediate connection with the transaction, or do they include, also, those which have a remote re- lation to it by a chain of circumstances which were not had in view in its incep'tion ? . . . A counterclaim is that which might have arisen out of or could have had some connection with the original transaction, in view of the parties, and which, at the time the contract was made, they could have intended might in some event give one party a claim against the other for compliance or non-compliance with its provisions. We refer in this connection, of course, to actions ex contractu only." 1 " Judicial construction can not render the statute more certain or definite. The definition is perhaps as plain as it can be made. The question whether the matter set up as a counterclaim is or is not a mat- ter " arising out of or connected with " the plaintiff's cause of action, must necessarily continue to be uncertain in many cases. Courts are more liberal in some cases than others, and the pleader, in a doubtful case, will be unable to find any general rule by which he or the court can be governed. The case of Conner v. Winston is important as show- ing that it is not sufficient that the matter pleaded should be remotely connected with or the remit of the act or transaction upon which the plaintiffs claim is based. It must be so nearly connected with the plaintiff's cause of action, where the action is upon contract, that it (k) "Woodruff r. Garner, 27 Ind. 4; (1) Conner v. Winston, 7 Ind. 523. Pom. Rera., 736; Vail v. Jones, 31 (m) Pom. Rem., 771. Ind. 467. (1) Vol. 3, p. 408. 440 SET-OFF COUNTERCLAIM. [CHAP. may reasonably be said that the parties must have foreseen that such a cause of action as the defendant sets up might grow out of the transaction. The cases deciding the question as to what may be pleaded as a coun- terclaim, are cited in the foot-note." In the case of Douthitt v. Smith, 69 Ind. 463, it is held that a counterclaim, iii its essential qualities, stands upon the same footing as a cross-bill in chancery, and must not introduce into the cause any matter foreign to the subject-matter of the complaint. It is not necessary that the pleading should show by direct averment that the cause of action arises out of or is connected with the plaint- iff's cause of action, but this must appear, either by some proper al- legation, or by the facts pleaded, as it is absolutely essential to the sufficiency of the counterclaim.^ 668. Must be in favor of the defendant pleading it. A counterclaim, as I have shown, is a cause of action, and to entitle a defendant to plead it as such the cause of action must be in his favor.* 1 He must be the party who might maintain an action in his own name as plaintiff in an independent action brought by him. 669. Surety can not plead counterclaim in favor of prin- cipal. The statutory provision authorizing a surety to plead matter (n) Conner v. Winston, 7 Ind. 523 ; 240; McMahan v. Spinning, 51 In*d. Poug v. La Due, 7 Ind. 675; Judah v. 187; Norris v. Tharp, 65 Ind. 47; The Trustees of the Vincennes Uni- Compton v. Jones, 65 Ind. 117; The versity, 10 Ind. 50; Newkirk v. Neild, Howe Machine Co. v. Keber, 06 Ind. 19 Ind. 194; Shelley v. Yanarsdoll, 23 498; Schaffer v. Schaffer, 68 Ind. 374; Ind. 543; Lovejoy v. Robinson, 8 Ind. Douthitt v. Smith, Adm'r, 69 Ind. 463; 399; Woodruff*. Garner, 27 Ind. 4; Cole v. Wright, 70 Ind. 180; Blakely Slayback v. Jones, 9 Ind. 470; Still- v. ttoruff, 71 Ind. 93; Cooper v. Jack- well v. Chappel, 30 Ind. 72; Vail v. son, 71 Ind. 244; Thompson v. Toohey, Jones, 31 Ind. 467; Dice v. Morris, 32 71 Ind. 296; Love v. Oldham, 22 Ind. Ind. 283; Grimes v. Duzan, 32 Ind. 51; Wilson v. Carpenter, 62 Ind. 495; 361; Hoffa v. Hoffman, 33 Ind. 172; Tabor v. Mackkee, 58 Ind. 290; McCoy Campbell v. Routt, 42 .Ind. 410; Block v. Wilson, Ex'r, 58 Ind. 447; Hess v. v. Ebner, 54 Ind. 5J4; Teague v. Young, 59 Ind. 379; Egolf v. Bryant, Fowler, 56 Ind. 569; Gilpin v. Wil- 63 Ind. 365; Harness r. Harness, 63 son, 53 Ind. 443; Morrison 7?. Kramer, Ind. 1 ; Sidiner v. Davis, 09 Ind. 336; 58 Ind. 38; Conaway v. Carpenter, 58 Schee v. McQuilken, 59 Ind. 269; Gor- Ind. 477 ; The Jeffersonvllle, Madison don v. George, 12 Ind. 408; Stundley v. and Indianapolis K. R. Co. v. Oyler, 60 N. W. Mut. Ins. Co., 95 Ind. 254. Ind. 383; Bran ham v. Johnson, 62 (o) Gilpin r. Wilson, 5=1 Ind. 443. Ind. 259; Money v. Musser, 34 Ind. (p) Thompson v. Toohey, 71 Ind. 373; Hinkle v. Mongerum, 50 Ind. '2W- Standley v. N. W. Mut. L. Ins. Co., 95 Ind. 254. (q) Pom. Rem., g 740. XVI.] SET-OFF COUNTERCLAIM. 441 in favor of the principal as a set-off in his own defense, does not ex- tend to counterclaims. r In that class of cases the matter pleaded can only go in defense of the action. In the earlier cases, where counter- claim was treated as matter of defense, there could be no valid reason why the surety should not have the right, except that there was no express statutory provision authorizing it, but as counterclaim is now treated entirely as a cause of action, and the pleading as a complaint, no such right can exist. It has been held by the supreme court that a cause of action in favor of the principal may be pleaded by all of the defendants. 8 To this extent the rule is just, but it can not be extended so far as to permit a defendant who is surety to plead in his own behalf that a cause of ac- tion exists in favor of his principal. As I have said, the second clause of the statutory definition of a counterclaim seems to contemplate the pleading of matter of defense that could not amount to a cause of action. The right of the surety to plead, under this clause of the statute, matter in favor of the prin- cipal that would tend to reduce the plaintiff's claim or demand for damages, might be within the spirit of the statute, but the right to plead a counterclaim by the surety is not given by statute, and can not exist under the present construction given the section defining a counterclaim. 670. Part of defendants may plead counterclaim. It is not necessary, where defendants are sued jointly, that the counterclaim should exist in their favor jointly, or that all should have a right of action. A cause of action existing in favor of one of the defendants may be pleaded by him in his o\\u behalf, whether it does or does not go to the benefit of the other defendants, where the cause of action against the defendants would authorize a several judgment against them, and the cause of action in favor of the defendant pleading it is several.' It is well settled by authority that, in case of a set-off, one of several defendants, jointly sued, can not plead a defense in his own favor. u This grows out of the doctrine of mutuality that has always been strictly adhered to in this class of defenses. Whether this rule applies to counterclaims in this state is not so well settled. In Mr. Pomeroy's work on Remedies the rule is laid down very broadly against the right of one defendant to plead a counterclaim when he is jointly liable (r) TC. S. 1881, \ 349 ; ante, 639. (t) Pom. Rem., f 755, 758, and notes, (s) Slaybadvt> Jones, 9 Ind. 470. (u) Ante, 646. SET-OFF COUNTERCL A IM . [c II A P. with other defendants, and to support the text a number of Indiana cases are cited. v It must be remembered that in other states counterclaim includes set-off, and all of the Indiana cases cited by the author are cases where the defense pleaded was not counterclaim but set-off. This rule can not be maintained in this state. Where one of the defendants sued jointly has a cause of action in his favor, arising out of the plaintiff's cause of action, there is no valid reason why he should not be permitted to set up his counterclaim.' 7 But the cause of action must be several, as the plaintiff's must be the same in a counterclaim as would be necessary if an independent ac- tion were brought and the same rules as to the joinder of causes apply. x 671. Must be against the plaintiff. In counterclaim the cause of action must be against the plaintiff. In this it differs materially from set-off, which may be pleaded against the assignor of the plaintiff. The demand can not be pleaded as a counterclaim, under the construction placed upon the statute by the later decided cases being against the assignor, as it is in no sense a defense but a cause of action upon which the defendant might recover a judgment against the former holder. y In the authority cited the author says : " The cause of action must exist against the plaintiff in the suit, so that a judgment for the relief demanded can be rendered against him. This feature in the counter- claim is evident upon the most cursory reading of the statutory pro- vision, and yet the books are full of cases in which matters have been set up as counterclaims that showed no cause of action whatever against the plaintiff, but one (if at all) existing against some other person not a party to the suit. This error is most likely to arise in actions brought by an assignee of a demand where the defendant has a claim which would be valid against the assignor. Such claim may, under some cir- cumstances, constitute a perfect defense to the suit, and it may be a set-off according to the provisions of statutes prior to the code ; but it can not be a counterclaim for the simple but most cogent reason that it does not entitle the defendant to any possible recovery against the plaintiff." 2 We have, however, a statutory provision that authorizes a defendant (v) Pom. Kern., \ 758, and note. (x) Woodruff v. Garner, 27 Ind. 4. (w) Dice v. Morris, 32 Ind. 283; (y) Pom. Rem., 741. Norris v. Tharp, 65 Ind. 47; McCoy (z) Bliss' Code PI., 367. . Wilson, Ex'r, 58 Ind. 447. XVI.] SET-OFF COUNTKKCLAIM. 443 to nake whatever defense or *et-off he had against the original payee before notice of the assignment ; but this statute does not go beyond a defense and set-off so it can not affect the right to plead a counter- claim.-' 1 One defendant is permitted, under our practice, to file a cross-com- plaint against another defendant in some cases where no cause of action is shown against the plaintiff, e. g., in the case of one defendant plead- ing suretyship as against another, but this is not a counterclaim in any sense of the term, except so far as it is asked that the plaintiff's judg- ment be so rendered as to require execution to be first levied upon the property of the principal defendant. The defendant who pleads a counterclaim may undoubtedly make other parties defendant to his complaint besides the plaintiff in a proper case. This may be other defendants in the case, or new parties may be brought in for that pur- pose, but in every case, in order to constitute it a counterclaim, the cause of action must be against the plaintiff alone, or in connection with other parties. Defendants can not, under the name of a counter- claim, litigate a matter between themselves, although it may arise out of the plaintiff's cause of action. 672. Must impair, affect, or qualify the plaintiff's right to relief. The term counterclaim seems to imply that the matter pleaded must affect, in some way, the relief the plaintiff would otherwise be entitled to receive. The definition of a counterclaim, as given in the statute, as I have already said, and as the supreme court has held, em- braces two classes, the last of which it is expressly provided must tend to reduce the plaintiff's claim or demand for damages. It may be a matter of some question whether under the first clause of the defini- tion it is necessary that the counterclaim must be one that affects the plaintiff's right of recovery. In New York it is expressly provided in the present code that the counterclaim " must tend in some way to diminish or defeat the plaint- iff's recovery." 1 * This provision of the code did not change the rule as it existed un- der the old code, as the court of appeals had held, without this direct provision, that the counterclaim must affect the plaintiffs recovery. The definition of a counterclaim in the New York code, and almost all of the other states, is entirely different from ours. It is thus de- fined in New York : " The counterclaim specified in the last section must tend in some way to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plaint' (a) R. S 1881, ?? 267, 550?,. (M Throop's N. Y. Code, ? 501. 444 SET-OFF COUNTERCLAIM. [CHAP. iff, or in a proper case against the person whom he represents ftnd in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the ac- tion : " 1. A cause of action arising out of a contract or transaction set forth in the complaint as the foundation of the plaintiff's claim or connected with the subject of the action. "2. In an action on contract any other cause of action on contract existing at the commencement of the action." c The second specification of causes of action in which a counterclaim may be pleaded, it will be noticed, is in effect the same as our set-off. The definition of a counterclaim is much more definite and specific than in our code, and is undoubtedly more restricted. In other states where it is not provided in terms that the counter- claim must be such as to affect or reduce the plaintiff's recovery, it is held to be the effect of the codes. d While there is no direct provision in our code thus limiting the rights of the defendant, it is difficult to conceive of a case where a cause of action in, favor of the defendant, and against the plaintiff, could arise out of or be connected with the plaintiff's cause of action, without in some way affecting his right to recover. The authorities clearly establish the rule that the right to plead a counterclaim should be thus limited. 6 673. Cause of action in plaintiff need not be admitted. Some of the authorities hold that where the defendant pleads a coun- terclaim it must amount to an admission that the plaintiff has a cause of action, and that he can not, at the same time, attempt to show that the plaintiff has no cause of action and plead a counterclaim/ No such construction can properly be placed upon the code of this state. The defendant is expressly authorized to plead " as many grounds of defense, counterclaim, and set-off, whether legal or equitable, as he shall have."* And, as I have already shown, his defenses may be entirely incon- sistent. 11 There can be no valid reason why, under the broad language of the statute, the defendant may not allege and prove, by way of defense, (c) Throop's N. T. Code, 501. (f ) Pom. Rem., 739, and authorities (d) Bliss' Code PI., $ 386-389. cited. (e) Pom. Rem., g 744, 745, 746, and (g) R. S. 1881, 343, sub. 3. authorities cited; Standley v. N. VV. (h) Ante, 591. Mat. L. Ins. Co , 95 Ind. 254. XVI.] SET-OFF COUNTERCLAIM. 445 that the plaintiff has no cause of action, and, by way of counterclaim, establish a right of action in himself and recover. The decided cases the other way, proceed upon the theory that unless the plaintiff has a cause of action it can not be said that there is any cause of action out of which a counterclaim could arise ; but it is enough if, by his complaint, the plaintiff alleges a cause of action, and out of the matter alleged the defendant pleads such facts as would show a counterclaim, admitting the facts to be as stated in the plaint- iff's complaint.' 674. Equitable cause of action may be pleaded. The stat- ute expressly authorizes the defendant to set up as many grounds of defense, counterclaim, and set-off, ichether legal or equitable, as he shall have. The question whether an equitable counterclaim can be pleaded to a legal cause of action, in favor of the plaintiff, has been the sub- ject of considerable controversy; but it is difficult to see how any doubt could arise under our code. So far as the questions of pleading and practice are concerned there is no proceeding in equity or action at law. j The practice being the same, whether the cause of action is legal or equitable, no reason could exist, if the statute did not authorize it in express terms, for denying the defendant the right to plead an equita- ble counterclaim to what would, under the old practice, have been an action at law. k 675. Counterclaim must exist when the action is com- menced. It is not sufficient for the defendant that he has a counter- claim at the time he pleads. His right to plead relates to the time the plaintiffs action is commenced, and his counterclaim, to be available, must exist at that time. 1 676. Tort can not be pleaded as counterclaim. In most of the states the right to plead a counterclaim is confined to .matters arising out of the " contract or transaction" set forth in the complaint. In those states it is generally held that, by the use of the word tram- action, it was intended to authorize counterclaims in other than actions on contract, but the authorities are not uniform." 1 These authorities can not be relied upon in this state, because of tin- difference in the language of the codes. Our code contains no liniita- (i) Pom. Kern., 7-39. (1) Newkirk v. Neild, 19 Ind. 104. (j) Ante, 176 et seq. may be pleaded as a set-off to a set-off pleaded by the defendant.* 1 This may be done where the mat- ter might have been included in the complaint. 1 " Where, in a suit against principal and surety, a set-off is pleaded as due the principal defendant, the plaintiff may reply a set-off against such principal. 9 And where the set-off pleaded is of an amount due the defendant from a former holder of the note, the plaintiff may set up, by way of reply, an indebtedness from the defendant to such former holder.' 693. Effect of failure to reply. When an affirmative answer is filed there should be a rule against the plaintiff to reply. A failure to reply admits the allegations of the answer to be true, and entitles the defendant to judgment thereon." But the defendant must move for the reply in the court below, and if he goes to trial without insisting upon a reply being filed, the alle- gations of his answer will be regarded as controverted by a general de- nial, and the same proof may be made by the plaintiff as if a general denial had been pleaded. 7 There was much confusion in the earlier cases as to the effect of a failure to reply, w but the question is now firmly settled as above stated. (n) Ante, \\ 307, 367, 507. Moffitt v. The Medsker Draining Asso- (o) Ante, 308. ciation, 48 Ind. 107; Waughv. Waugh, (p) Riser v. Snoddy, 7 Ind. 442; 47 Ind. 580; Knowlton v. Murdock, 17 Perkins v. Rogers, 35 Ind. 124. Ind. 487; Martindale v. Price, 14 Ind. (q) Reilleyv. Eucker, 16 Ind. 303; 115; Henley v. Kern, 15 Ind. 391; Curran v. Curran, Adm'r, 40 Ind. 473. Davis v. Engler, 18 Ind. 312; Suther- (r) House v. McKinney, 54 Ind. 240. land v. Venard, 32 Ind. 483; Irvinson (s) Turners. Simpson, 12 Ind. 413. v. Van Riper, 34 Ind. 148; Ringle v. (t) Dodge . Dunham, 41 Ind. 186. Bicknell, 32 Ind. 369; The Harrison, (u) Barker v. Hobbs, 6 Ind. 385; etc., Turnpike Co. v. Roberts, 33 Ind- McCarty v. Roberts, 8 Ind. 150. 246; Busk. Prac. 286. (v) Tram v. Gridley, 36 Ind. 241; (w) Busk. Prac. 91, 92. xvni.] VARIANCES AND AMENDMENTS. 455 CHAPTER XVIII. VARIANCES AND AMENDMENTS. SECTION. 694. Statutory provisions. 695. Changes effected by the statute. 696. Amendments, how made. SECTION. OX WHAT TKBMS LEAVE TO AMEND GRANTED. 712. Costs. AMENDMENTS, AS OF COURSE. 697. Before pleading is answered. AMENDMENTS BEFORE TRIAL. 698. Before the issue? are closed. 699. After the issues are closed. 700. Discretion of court. 701. After demurrer sustained. 702. After reversal by the supreme court. ON THE TRIAL. 703. Amendment changing the issues may be made. AFTER VERDICT. 704. Can not change the issues. ON APPEAL FROM JUSTICE OF THE PEACE. 705. llule the same as* in other cases. 706. By supplemental pleading. EFFECT OF AMENDMENT. 707. Waives ruling on demurrer to original pleading. 708. When will entitle opposite party to a continuance. 709. When the jury must be re-sworn. 710. When is the commencement of a new action. 711. Amended pleading takes place of original. HOW OBJECTION TO AMENDMENT MADE. 713. No affidavit necessary. AMENDMENT OF RECORDS. 714. During the term. 715. May be made without notice. 716. After the term. 717. Application must be by motion. 718. Notice must be given. 719. May be made after appeal. OF BILLS OF EXCEPTIONS. 720. Can not be corrected by parol ev- idence alone. OF PROCESS. 721. The summons. 722. Executions. 723. Officer's return. VARIANCE AND FAILURE OF PROOF. 724. Variance. 725. Variance and failure of proof dis- tinguished. 726. Material only when opposite party shows by affidavit that he has been misled. 727. When will be deemed amended in supreme court. 728. How question of the right t> amend raised. 729. Description of written instru- ments. 45G VARIANCES AND AMENDMENTS. [CiiAP. 694. Statutory provisions. "Sec. 394. Any pleading may be amended by either party, of course, at any time before the pleading is answered. All other amendments shall be by leave of the court. The party amending shall pay the costs of the leave to amend. When the trial is not delayed by reason of the amendment, no other costs shall be taxed. "When the amendment causes a delay during any part of the term, or to another term, the party amending shall pay the costs of such delay. No cause shall be delayed by reason of an amend- ment, excepting only the time to make up issues, but upon good cause shown by affidavit of the party or his agent, asking such delay. "Sec. 395. The affidavit shall show distinctly in what respect the party asking the delay has been prejudiced in his preparation for trial by the amendment. When the action is continued for such cause, the party asking the delay shall file his pleadings at such time as the court may direct. "Sec. 396. The court may, at any time in its discretion, and upon such terms as may be deemed proper for the furtherance of justice, di- rect the name of any party to be added or struck out a mistake in name, description, or legal effect, or in any other respect, to be cor- rected ; any material allegation to be inserted, struck out, or modified, to conform the pleadings to the facts proved, when the amendment does not substantially change the claim or defense. " Sec. 397. When the plaintiff is ignorant of the name of the defend- ant, such defendant may be designated in any pleading or proceeding by any name ; and when his true name is discovered, the pleading or proceeding may be amended accordingly, either before or after service of the summons." a 695. Changes effected by the statute. These statutory pro- visions change the rule as it existed at common lew very materially. Under common-law pleading, matter of essential description must be strictly proved, as alleged, and matters of substance substantially proved. The right of a party to amend a pleading depends materially upon the time when the offer to amend is made. If the opposite party has not answered the pleading, no question is likely to arise, and it may be done without leave of court. Leave to amend may be asked : 1. After the opposite party has answered the pleading, but before the issues are closed ; 2. After the issues are closed, but before the trial; 3. During the trial ; 4. After verdict. After showing how amend- ments of pleadings may be made, the right to amend, and upon what terms, will be considered. These questions relate exclusively to the (a) B. S. 1881, l\ 394, 395, 396, 397. XVIH.j VARIANCES AND AMENDMENTS. 457 pleadings. The right and proper manner of amending process and the records in a cause will be within the scope of this chapter. The doctrine of variances between the pleadings and the proof will also be considered. The authorities relating to these questions will be found to be very conflicting, more particularly those relating to amendments upon the trial. Some of the cases, it will be found, extend the right to the farthest extreme, permitting such an amendment as will change entirely the cause of action, while others hold that no such radical change was in- tended by the statute. This same conflict in the decisions will be found to exist iii the decided cases in other states. The later cases in this state seem to have arrived at the conclusion that the only test that can be applied in determining whether an amendment should be per- mitted is, whether the opposite party has been misled or prejudiced by the amendment, and the burden is upon him to show that he has been so misled or prejudiced, and in what respect. b 696. Amendments, how made. Pleadings may be amended, first, by a new pleading; second, by filing an additional paragraph; third, by an amendment to the pleading already filed, by interlineation or mutilation. The practice of amending by interlineation or mutilation is a slovenly practice that should not be encouraged. There is, however, no remedy for the evil that can be enforced by the courts. In addition to the amendments stated above, the statute authorizes the filing of supple- mental pleadings, which must be based upon something that has oc- curred since the original pleading was filed. AMENDMENTS AS OF COURSE. 697. Before pleading is answered. The statute expressly au- thorizes a party to amend his pleading at any time before it is an- swered.' 1 This rule applies to all the parties in the action and to all the pleadings. The amendment can not be made without leave after the opposite party has responded to the pleading either by a motion or demurrer, or by a pleading in abatement, or to the merits. The stat- ute contains no limitation upon this right of amendment. So far as the defendant is concerned there is no reason why there should be any limitation. As to the plaintiff, no amendment should be permitted that would change the cause of action from the one named in the com- (b) Child v. Swain. 69 Ind. 230. (d) R. S. 1881, ? 894; ante. ? 694; (c) Post, 706. Farrington v. Hawkins, 24 Ind. 25-3. 458 VARIANCES AND AMENDMENTS. [CHAP. plaint. The injustice that might result from such an amendment is evident, as the defendant might be willing to suffer a default as to the cause of action named in the complaint, but not as to the one added by way of amendment. But, as I have said, the right to amend under the statute is unlimited, and, so far as I know, there is no decided case on the point in this state. In some of the states it is held that amendments may be made, as of course, by substituting an entirely different ^cause of action, '"pro- vided the summons continues to be appropriate." 6 In those states in which notice of the amendment is required, as in Ohio/ no advantage can be taken of the right given by the statute, but our code contains no such safeguard. AMENDMENTS BEFORE TRIAL. 698. Before the issues are closed. After a pleading has once been answered no amendment thereto can properly be made without leave of the court first obtained. It is evident, from a reading of the statute, that sections 394 and 395 apply exclusively to amendments made before the trial. The affi- davit the opposite party is required to make, under section 395, is that he has been prejudiced in his preparation for trial by the amendment. This evidently applies to something that is done prior to the trial. These two sections contain no limitation upon the right of amendment. So far as any provision in either of these sections is concerned the amendment may undoubtedly change the cause of action. This is proper, as the amendment can only occur after the pleading has been answered and the parties are before the court. It will appear, here- after, that these two sections have been applied to amendments made upon and after the trial. 8 If they are to be so construed, section 396, so far as it applies to amendments, is surplusage. Its provisions are completely covered by the other sections. This section was evidently intended to apply to amendments on or after the trial. h The right of amendment, before the cause is put at issue, is very liberally extended to all of the parties to the action. While the courts may not grant the leave as readily where the amendment changes the cause of action, the right to so amend the pleading before the trial is undoubtedly given by the broad terms of the statute ; but the court (e) Pom Rem., 566; Brown v. (g) Post, \ 703. Loigh, 12 Abb. Pr. (N. S.) 193. (h) Post, 703. (f) K. S. of Ohio, 1880, 6111; 1 Bates' Ohio PI. and Par. 161. XVIIJ.] VAi:iAN< I> AND AMENDMENTS. 459 should be. more strict in requiring the proper showing, and the leave should not be granted except upon such terms as will relieve the opposite party from the payment of any cost occasioned by the amend- ment. 1 699. After the issues are closed. There is no material differ- ence, so far as the mere right to amend is concerned, whether the amendment is offered before or after the issues are closed. The statute is broad enough to cover an amendment made at such time, and there is no valid reason why the amendment should not be permitted even where it changes the cause of action or defense. The supreme court has held that an amendment may be properly made that changes the issues, notwithstanding heavy costs have accrued which would not have accrued had the amendment been made at a prior term.' 700. Discretion of court. Whether a party shall be allowed to amend his pleadings, especially after the issues are closed, is a matter very much within the discretion of the court. The right to amend is not absolute in any case where leave of court is necessary. The fact that leave of court is necessary implies the right, on the part of the court, to refuse to allow an amendment to L3 made in every case ex- cept upon a proper showing, and, even where a showing is made, the matter is still within the legal discretion of the court and the right may be refused. k When it is said that the matter is within the discretion of the court it must not be understood that the decision of the court is conclusive. It is a legal discretion that may be reviewed in the supreme court, and if the discretion has been abused the cause will be reversed. " The granting of leave to amend the pleadings after the issues are closed, and- before the commencement of the trial, and on the trial, is very much within the sound legal discretion of the lower courts, and should only be granted in a proper case and upon good cause shown by affidavit, w r here the amendment makes a new issue or adds a new cause of action or ground of defense." l 701. After demurrer sustained. Where a demurrer is sus- tained to a pleading, an amendment can only be made by leave of the court. There is no limit to the number of amendments that may be (i) Burr v. Mendenhall, 49 Ind. 496; (k) Gaff v. Hutchinson, 38 Ind. 341. Gaff v. Hutchinson, 38 Ind. 341; Fer- (1) Burr v. Mendenhall, 49 Ind. 496, guson v. Ramsey, 41 Ind. 511. 499; Koons v. Price, 40 Ind. 164. ( j) Duncan r. Cravens, 55 Ind. 525; Gaff v. Hutchinson. 38 Ind. 341. 460 VARIANCES AND AMENDMENTS. [CHAP. made under the statute, but the right should be controlled within proper limits. The right to amend after" a demurrer is sustained is granted almost as a matter of course. Under the code of 1852 it was provided that if the court sustained a demurrer to the complaint " the plaintiff may amend by payment of costs occasioned thereby." 111 And the supreme court held that the duty of the court to permit the amendment was imperative." Under the present code the party may amend " upon such terms as the court may direct, and on payment of the costs occasioned by the demurrer." The right to amend is still a matter of right, but the court may pre- scribe the terms. 702. After reversal by the supreme court. When a cause has been appealed to the supreme court and reversed, it stands in the court below the same as before the appeal was taken. If the cause is reversed upon the pleadings, the case is not at issue, and amendments will be permitted almost as of course. If the cause is reversed on some error committed during the trial, the effect of the reversal is simply to grant a new trial, and the cause comes back to the lower court at is- sue. Leave to amend should be granted on the same terms as in other cases after the issues are closed. ON THE TRIAL. 703. Amendment changing the issues may be made. The difficulty of properly construing the statute of amendments is ap- parent in a marked degree when the amendment is offered during or after the trial. The great question has been whether an amendment can be made changing the cause of action or defense. Taking the statute alone, I should say, unhesitatingly, that no such amendment is contemplated or provided for. Taking the decided cases, nothing more can be said than that they are in utter confusion, and the last one in which the question was considered holds that such an amendment may be made at any stage of the case. It is clear to my mind that the stat- ute can not receive such a broad construction without doing violence to both its letter and its spirit. As I have already attempted to show, sections 394 and 395 were intended to apply to amendments before the trial. p Sections 391, 392, and 396 are in my judgment the only ones that (m) R. S. 1876, p. 59, 53. (o) R. S. 1881, 342. (n) Ewing v Patterson, 35 Ind. 325. (p) Ante, 698. XVIII.] VARIANCES AND AMENDMENTS. 461 can properly be construed as authorizing an amendment after the trial is entered upon, and then it can only be done to avoid a vari- ance, and can not substantially change the claim or defense. 1 To so construe the other sections as to apply to amendments on and after the trial, is to ignore section 396 entirely. The section author- izes an amendment to " conform the pleading* to the facts proved when the amendment does not substantially change the claim or defense." Now why this section should impliedly negative the right to change the claim or defense by amending the pleadings to conform to the proof, if the other sections expressly confer the right to amend without limit at any stage of the came, can not be satisfactorily explained. It has been held in a number of cases that an amendment substan- tially changing the cause of action or defense could not be made on the trial/ It has also been held in both earlier and later cases that such an amendment is proper under the statutes. 8 It will be seen by the authorities cited that the greater number have held that an amendment changing the issues can not be made after the trial is entered upon. The case of Burr v. Mendenhall, is the leading, and it is believed the only case, in which it has been* held in direct terms that an amendment of this nature can be made. After quoting a number of authorities the court say : "It will be observed that the earlier and later decisions of this court, computing time with reference to the adoption of the code, accord with what Avas the mani- fest intention of the framers of the code, and that was to secure a speedy trial of causes upon their merits, disregarding all mere formal and technical objections. This intension is manifested in sections 97, 98, and 99 of the code,' which prescribe what amendments may be made and how a party may be relieved against a judgment taken against him, by his mistake, inadvertence or excusable neglect." The conclusion is reached that, where sufficient cause is shown therefor by affidavit, the amendment may properly be made i:i the dis- cretion of the court. The learned judge who delivered the opinion cites, as having decided that the statute authorizes such amendments, (q) Post, ? 725. Road Co. v. The State, 16 Ind. 456; (r) Miles v. Vanhorn, 17 Ind. 245; Holcraft v. King, 25 Ind. 352; De Ar- Thompson r. Jones, 18 Ind. 476; Hoot mond r. Armstrong, 37 Ind. 35; Pcoc- v. Spade, 20,Ind. 326; Landry's Adm'r tor r. Owen.*. 18 Ind. 21. T-. Durham, 21 Ind. 232; Harris r. (>) Ostrander r. Clark, 8 Ind. 211: Mercer, 22 Ind. 829; Trees v. Eakin, Burr r. Mi-ndenhall. 49 Ind. 49G. V Tnd. 554; Kerstettcr r. Raymond, 10 (t) R. S. 1881, ? 395, 396. Ind. 190; Thu Danville, etc., Plank 462 VARIANCES AND AMENDMENTS. [dIAI% thirteen cases. I have carefully examined the cases, and find that but one of the number can be said to support the position." Two of the cases decide the point directly the other way; 7 four of the cases decide expressly that the amendment made did not change the issues ; w in two, the amendment was made before the trial ; x in one, the amendment was permitted after the trial, and it was held to be no part of the record because it was made after verdict and changed the issue ; y in one, the amendment did not in fact change the issue ; z in one, the point was not decided at all ; a and in another it was held that it Avas not error to refuse to allow the defendant to withdraw the general denial in order to obtain the right to open and close. b It will be seen from this review of the cases that the decision is not only not supported by previous cases but the authorities are over- whelmingly the other way. While it must be admitted that the question is directly and clearly decided, it is not supported .either by the terms of the statute or the authorities, and certainly, it is not supported by reason or justice. It is said that the amendment should only be upon affidavit showing sufficient cause, and the opposite party, if he is misled, must show the fact by affidavit. The affidavit of the opposite party has nothing to do with the right to make the amendment. It can only be filed after the amendment is made, and for the purpose of obtaining a continu- ance. The simple question is, whether the statute authorizes such an amendment to be made, and this question can not be affected either way by affidavits. If the court has the right to grant the leave, the question whether the power should be exercised in a given case may properly be determined on affidavit. AFTER VERDICT. 704. Can not change the issues. The pleadings may be amended after the verdict of a jury or finding of the court. Such amendments are only allowed for the purpose of making the pleadings (u) Ostrander v. Clark, 8 Ind. 211. (x) Taylor v. Dodd, 5 Ind. 246; (v) Kerstetter v. Raymond, 10 Ind. Koons v. Price, 40 Ind. 164. 199; The Danville, etc., Plank Road (y) Maxwell v. Day, 45 Ind. 509. Co. v. The State, 16 Ind. 456. (z) The Wayne County Turnpike (w) Trees v. Eakins, 9 Ind. 554; Co. v. Berry, 5 Ind. 286. De Armond v. Armstrong, 37 Ind. (a) Kerschbaugher v. Slusser, 12 35; Hackney v. Williams, 46 Ind. Ind. 453. 413; Holcraft v. King, 25 Ind. 352. (b) Mason v. Sietz, 36 Ind. 516. ::VIII.] VARIANCES AND AMENDMENTS. 463 conform to the proof, and can not be made where the issues will be changed thereby. ON APPEALS FROM JUSTICES OF THE PEACE. 705. Rule the same as in other cases. Where an appeal is taken to the circuit court from a justice of the peace, amendments may be made as in other cases, so far as the mere right to amend is con- cerned, but the terms upon which the right is granted may be dif- ferent.' 1 The right to amend a pleading presupposes that there is something to amend. It is -held, therefore, that where the complaint shows that the justice has no jurisdiction, the complaint can not be amended in the circuit court, although the effect of the amendment is to bring the case within the jurisdiction of the justice. 6 It is held, also, that where the amount sued for originally is within the justice's jurisdiction, but an amendment is made increasing the amount beyond the jurisdiction, the cause should be dismissed/ The necessity for amending pleadings before justices does not arise as frequently as in the higher courts, as most of the defenses may be proved without pleading. Where an amendment is made to an answer that is unnecessarily pleaded before the justice, such amendment will be held to be immaterial, no matter how radical the change may be, because the facts may alj be proved without the pleading, whether amended or not. 8 There is no valid reason why an amendment made in the circuit court on appeal should not be allowed, even where it changes the issue. The court has the right to impose such terms as that the opposite party need not be injured. No amendment can properly be made after appeal without leave of court. h 706. By supplemental pleadings. " Sec. 399. The court may on motion allow supplemental pleadings showing facts which occurted after the former pleadings were filed." ' (c) Aiken v. Bruen, 21 Ind. 137; (e) Kiphart v. Brennemen, 25 Ind. Maxwell v. Day, 45 Ind. 509; Heddins 152. v. Younglove, 46 Ind. 212; Durham v. (f) Pritchard v. Bartholomew, 45 Fechheimer, 07 Ind. 35. Ind. 219. (d) Duke v. Brown, 18 Ind. Ill; (g) Phillips v. Cox, 61 Ind. 345. The Indianapolis and Cincinnati R. R. (h) Best v. Powers. 19 Ind. 85. Co. v. Clark, 21 Ind, 150; Miller v. (i) R. S. 1881, 399. Beall, 2G Ind. 234 ; Hampton v. War- ren. 51 Ind. 288. 464 VARIANCES AND AMENDMENTS. [CHAP. Under this statute a supplemental pleading can only be filed upon leave of court.J The pleading filed must allege some matter material to the action pending, that has occurred since the filing of the original pleading, and should not materially alter the claim or defense. k The supplemental complaint can not be a substitute for the original, and where the original states no' cause of action, it can not be mudo good by a supplemental complaint. There must be a cause of act! >:i shown at the commencement of the action. 1 EFFECT OF AMENDMENT. 707. Waives ruling on demurrer to original pleading. The effect of an amendment must depend very materially upon the time when it is made. If made after a demurrer is sustained to a pleading, the right to rely upon the demurrer as error is waived. .The amended pleading takes the place of the original, which goes out of the case for all purposes. 1 " Ordinarily, where the demurrer is sustained, the party does not waive the ruling by filing an additional paragraph, as the several paragraphs are regarded as so many separate causes of action ; but where the additional paragraph contains the same matter in effect that was con- tained in the paragraph to which the demurrer was sustained, the rule applies." An amendment made to a paragraph can not amount to a waiver of an exception to the sustaining of a demurrer to another paragraph of the same pleading. 708. When will entitle opposite party to a continuance. Under the code the rule is well settled that the amendment of a pleading will not work a continuance, no matter how material the (j) Martin v. Noble, 29 Ind. 216; Ind. 137; Patrick v. Jones, 21 Ind. Musselman v. Manley, 42 Ind. 462. 249; Miles v. Buchanan, 36 Ind. 490,* (k) Wheat v. Catterlin, '23 Ind. 85; Kirkpatrick v. Holman, 25 Ind. 293; Patten v. Stewart, 24 Ind. 332. Holdridge v. Swift, 23 Ind. 118; Alc- (1) Musselman v. Manley, .42 Ind. Ewen v. Hussey, 23 Ind. 395; Specht 462. , v. Williamson, 46 Ind. 599; The T..- (m) Palleys v. Swope, 4 Ind. 217; ledo, Wabash, etc., R. K. Co. v. Roger*. St. Johns v. Hardwick, 17 Ind. 180; 48 Ind. 427; Busk. Prac. 286 ; De Ar- Jay v. The Indianapolis, etc , R. R. mond v. Stoneman, 63 Ind. 386. Co.. 17 Ind. 262; Ham v. Carroll, 17 (n) Trisler v. Trisler, 54 Ind. 172. Ind. 442; Caldwell v. The Bank of Sa- (o) Washburn v. Roberts, 72 Irul. lem, 20 Ind. 294; Aiken v. Bruen, 21 213. * XVIII.] VARIANCES AND AMENDMENTS. 465 amendment may be, without a showing on the part of the opposite party, by affidavit, that he has been misled thereby. The affidavit is required to show distinctly in what respect the party has been prejudiced in his preparation for trial by the amend- ment. 11 There are numerous authorities holding that the party has no right to demand a continuance without complying with the statute by mak- ing the necessary affidavit. q 709. When the jury must be resworn. Under the rule estab- lished by the latest authorities in this state, the pleadings may be so changed on the trial as to add a new cause of action or defense. When the amendment has the effect to change the issue, the jury must be resworn/ 710. When is the commencement of a new action. As a rule, the amendment to a pleading or the filing of an additional para- graph, by way of amendment, does not amount to the commencement of a new action, but the amendment filed speaks from the time the original pleading was filed and summons issued thereon. This is not so when the amendment sets up a title not previously asserted, involv- ing a question upon 'the statute of limitations, and where new parties are brought in by the amendment. As to them the pleading must speak from the time the amendment is made. 3 This rule has been applied where the action is brought by a plaintiff who has no cause of action, and the proper plaintiff is substituted by amendment.' 711. Amended pleading takes place of original. I have shown that where a demurrer is sustained to a pleading and the same is amended, the ruling on the demurrer is waived. u (p) Ante, 698; R. S. 1881, 394, Kerstetter v. Raymond. 10 Ind. 199; 395. Kerschbaugher v. Slusser, 12 Ind. 433 ; (q) Hubler v. Pullen, 9 Ind. 273; Hoot v. Spade, 20 Ind. 326; Knowles Burr v. Mendenhall, 49 Ind. 496; Hny v. Rexroth, 67 Ind. 59. v. The State, 58 Ind. 337; Durham v. (s) Lagow v. Neilson, 10 Ind. 183; Fechheimer, 67 Ind. 35; Knowles v. Jones v. Porter, 23 Ind. 66; Shaw v. Rexroth, 67 Ind. 59; Leib v. Butterick, Cock, 78 N. Y. 194; 1 Bates' Ohio PI. 68 Ind. 199; Child v. Swain, 69 Ind. and Par. 171. 230; McKinney v. Barter, 7 Blkf. 385; (t) Hawthorn v. The State, 57 Ind. Taylor v. Jones, 1 Ind. 17. 286. (r) Ostrander v. Clark, 8 Ind. 211 ; (u) Ante, 707. 30 466 VARIANCES AND AMENDMENTS. [CHAP. This is on the ground that the amended pleading takes the place of the original. Whether the pleading is amended after the demurrer thereto is sus- tained, or upon leave without a demurrer being filed, if the pleading filed covers the material facts set out in the original, the latter is re- garded as out of the record for all purposes, and any subsequent plead- ings based upon it are also taken out of the record by the amendment. T ON WHAT TERMS LEAVE TO AMEND GRANTED. 712. Costs. The statute provides that " the party amending shall pay the costs of the leave to amend. When the trial is not de- layed by reason of the amendment no other costs shall be taxed. When the amendment causes a delay during any part of the term, or to another term, the party amending shall pay the costs of such delay." w This statute requires that the party amending shall pay the costs of the leave to amend in every instance. Whether any other costs shall be paid by him depends upon whether the amendment causes delay. It is not necessary that the cause should be delayed until another term in order to render him liable for the costs. 'The rule applies when a delay is caused '' during any part of the term." It is said in some, of the cases that the terms on which leave to amend shall be granted are within the discretion of the court. 3 Under the statute of 1833, it was held that where an appeal had been taken from a justice of the peace and a material amendment made to the complaint in the circuit court, the plaintiff must pay all costs that had previously accrued. y And under the present statute, where the complaint was amended by adding an item after the judgment had been set aside in proceedings to review, it was held proper to grant the leave on the terms that the plaintiff pay all costs accrued since the issues were formed. 1 The terms upon which leave shall be granted is not a matter within the discretion of the court, so far as the payment of costs is concerned. When leave is granted the statute fixes the terms, and the party mak- (v) R. S. 1881, 650; Downs v. Trisler v. Trisler, 54 Ind. 172; Debreuil Downs, 17 Ind. 95; Holdridge t>. Sweet, v. Davis, 48 Ind. 396; Westerman v. 23 Ind. 118; McEwen v. Hussey, 23 Poster, 57 Ind. 408. Ind. 395; Kirkpatrick v. Holman, 25 (w) R. S. 1881, 394, 411. Ind. 293; Specht v. Williamson, 46 (x) Murray v. Fry, 6 Ind. 371. Ind. 599; Miles v. Buchanan. 36 Ind. (y) Maxam v. Wood, 4 Blkf. 297. 490; Yancy v. Teter, 39 Ind. 305; (",) Gaff v. Hutchison, 38 Ind. 341. XVIII.] VARIANCES AND AMENDMENTS 167 ing the amendment should be required to pay all costs occasioned by his amendment. Where no delay results the costs must be very slight, but whether delay is occasioned or not, the statute provides, in express terms, that the costs occasioned by the leave to amend shall be paid by the party amending. The court can not impose the payment of the costs as a condition upon which the leave shall be granted. The question of costsshould have nothing to do with the right to amend. But, whether it has or not, the party can not be compelled to pay the costs before proceeding with the trial. The most that can be done is to render a judgment against him therefor." The difficulty is not so much in determining what costs are required by the statute to be paid, as in ascertaining, in any particular case, what costs are occasioned by the delay. In some cases this may be easily determined, in others it will be almost impossible. The order of the court should be in accordance with the statute, that the part}' pay all costs occasioned by the delay, and the costs occasioned by the delay should be determined on motion by the party interested. HOW OBJECTION TO AMENDMENT MADE. 713. No affidavit necessary. The statute does not require an affidavit in order to raise the question whether an amendment should or should not be allowed. An affidavit is required where the party asks for delay. It has been held by the supreme court that, where an application is made for leave to amend as to a material matter, pend- ing the trial, the court should require an affidavit, and where the amendment is allowed, and the opposite party does not, by motion supported by affidavit, ask for delay to complete the issues, when ren- dered necessary by such amendment, or to prepare for trial, the pre- sumption will be indulged by the supreme court that the party was not prejudiced by such amendment; but if an application is made for delay, either to plead or prepare for trial, and is overruled, then the court will determine whether there has been such an abuse of discretion as injuriously affected the rights of the party. b I have shown that this decision is against the great weight of author- ity in this state. In respect to the action of the court below in grant- ing leave to amend, it proceeds upon the theory that a party can not be prejudiced, and the amendment must have been proper unless the party shows, by motion supported by affidavit, that he is entitled to (a) Duncan v. Cravens, 55 Ind. 525. (b) Burr v. Mendenhall, 49 Ind.496. 468 VARIANCES AND AMENDMENTS. [CHAP. delay. There is an apparent inconsistency in this. The motion and affidavit are for delay. The court so states and the statute so provides. The overruling of the motion for a continuance can not properly or legally affect the question whether the amendment is such a one as the court should have permitted. The question whether one party's mo- tion for leave to amend should have been sustained, is made to depend upon whether a subsequent motion, by the other party, for a continu- ance is overruled or sustained. It is difficult to understand how the question whether an amendment is within the statute or not can be de- termined by the subsequent action of the opposite party in moving for a continuance. If, after the amendment is allowed, the party moves for delay, this, the statute provides, must, as in every application for a con- tinuance, be supported by affidavit ; but this, as it seems to me, is a question entirely distinct from the question whether the amendment is rightly allowed or not. The effect of the decision is that there is no limitation as to the kind of amendment that may be made on the trial, the only question being whether a continuance shall be granted. Where the application is for leave to amend, for the purpose of avoiding a variance between the pleading and the proof on the trial, under section 391, the statute expressly requires that the opposite party shall show, by affidavit, that he has been misled, and in what respect; but under the statute, with reference to variances, there could not be an amendment, to conform the pleading to the proof, that would amount to the substitution of a new cause of action or defense, and therefore the rule laid down in Burr v. Mendeuhall could not apply to this section. It will be noticed, by an examination of the authorities, that no distinction is made, in many of them, between amendments to make the pleadings conform to the proof in case of a variance, and the general statutory provision authorizing amendments to the pleadings without reference to the question of variance. The statute expressly provides that a failure to prove a cause of action or defense, in its general scope and meaning, is not a variance within the meaning of the statute, but a failure of proof. Therefore, under those sections, the necessity for substituting a new cause of action could only arise upon a failure of proof of the one originally alleged. A careful examination of the many decided cases growing out of these several statutory provisions, will show that they have thrown the whole subject into utter confusion. (c) R. S. 1881, 393 ; post, 725. XVIII.] VARIANCES AND AMENDMENTS. 469 AMENDMENT OF RECORDS. 714. During the term. The rule is well settled by authority that the proceedings of the court are to be considered as in fieri until the close of the term. d It lias been held, also, that where an adjourned term follows after the regular term it is a part of the term, and the right to control and amend the records continues until the final ad- journment. 6 The court, having the control of its records and proceedings, may, at any time before adjournment, modify, amend, or vacate any record, order, or judgment made during the term. f 715. May be made -without notice. The rule that the pro- ceedings are in fieri -until the close of the term implies that the parties are still before the court, and amendments of the records may be made in a cause without notice to the parties. 8 716. After the term. The right to amend the records of the court after the close of the term does not rest with the court as a mat- ter of right. After the final adjournment of the term the court has no further control over the records, and they can not be changed, modified or vacated, except by a direct proceeding 'for that purpose. Whether an amendment could be made, under the code, where there was nothing to amend by, was doubted in the earlier cases. h But the rule is well settled by later cases that a record made at a former term can only be amended or corrected where there is something in the record by which to amend. The right only extends to clerical errors, and the correction can only be made for the purpose of making the record con- form to the judgment actually rendered. 1 (d) Amory v. Reilley, 9 Ind. 490; Burson v. Blair, 12 Ind. 371; Jenkins Layman v. Graybill, 14 Ind. 166; Gu- v. Long, 28 Ind. 460; Makepeace v. lick r. Connelly,,42 Ind. 134; Burnside Lukens, 27 Ind. 435; Goodwine v. r. Ennis, 43 Ind. 411; Kichardson v. Hedrick, 29 Ind. 383; Bales v. Brown, Howk, 45 Ind. 451. 57 Ind. 282; Latta v. Griffith, 57 Ind. (e) Smith v. Smith, Adm'r, 17 Ind. 75. 329; Miller v. Royee, Adm'r, 60 Ind. (f) Burnside v. Ennis, 43 Ind. 411; 189; Kambieskey v. The State, 26 Ind. llichardson v. Howk, 45 Ind. 451 ; Ky- 225; Freeman on Judg., 61 et seq.; on v. Thomasj 104 Ind. 59. Sehoonover v. Reed, 65 Ind. 313; (g) Burnside v. Ennis, 43 Ind. 411 ; Hamilton v. Burch, 28 Ind. 233 ; Uland Richardson v. Howk, 45 Ind. 451; v. Carter, 34 Ind. 344 ; Hebel v. Scott, Lake v. Jones, 49 Ind. 297. 36 Ind. 226 ; Buckner v. The State. 56 (h) Kyle v. Hayward, 14 Ind. 367; Ind. 210; Long v. The State, 56 Ind. Boyd v. Blaisdell, 15 Ind. 73. 133; Atkins v. Sawyer, 1? Am. Dec. (i) Silver v. Butterfield, 2 Ind. 24; 188, 193, and note; s. c., 1 Pick 351; Lippencott v. Wygant, 2 Ind. 661; Bramlet p. Pickett, 12 Am. Dt!o. 350, McManus v. Richardson, 8 Blkf. 100; 470 VARIANCES AND AMENDMENTS. [clfAP. The rule governing the power of the court to amend its records after the term, is fully and clearly stated in the case of Makepeace v. Lukens: "It was ruled by this court, in the case of Jenkins v. Long, 23 Ind. 460, that the authority to amend the record after the proceedings have ceased to be in fiere is founded upon the acts of Parliament on the sub- ject of amendments, which are declared by statute to be in force iu this state. To those acts we must look in order to "determine what evidence will be sufficient to authorize the amendment. At common law it was held that the judges could not alter the proceedings after they had become a record except during the same term of which the record was. The reason for this was that, during the whole term in which any judicial act is done, the record remains iu the breast of the judges of the court, and, therefore, the roll is -alterable during the term as they shall direct. But when the term is past the roll is the record, and admits of no alteration. > Subsequently it was permitted to amend, notwithstanding the record was made up and the term was past, considering the proceedings to be in fiere till judgment was given, but after the judgment was entered no amendment could be made at a subsequent term. k To relieve from the rigor of this rule it was eu- acted, in the reign of Edward III., ' that, by the misprision of a clerk, in any place wheresoever it be, no process shall be annulled or discon- tinued by mistaking in writing one syllable or letter too much or too little ; but, as soon as the mistake is perceived, by challenge of the party or in other manner, it shall be amended in due form Avithout giving advantage to the party that challengeth the same because of such misprision.' 1 It being held by the courts that this statute related only to proceedings before judgment, and there being much question as to the extent proper to carry it, the act of 9 Edw. V., St. 1, C. 4, after reciting the former statute, declared that ' the King, considering the diversity of opinions which had been upon the said statute, and to put the thing in more open knowledge, had ordained by authority of Parliament that thejustices before whom such plea or record is made or shall be depending, as well by adjournment as by way of error or otherwise,, shall have power and authority to amend such record and process as afore is said, according to the form of the same statute, as well after judgment in any such plea, record or process given, as be- 351, and note; s. c., 2 A. K. Marshall, Ind. 18; Greenman v. Cohee, 01 Ind. 10 ; Chicbester v. Cande, 15 Am. Dec. 201; Runnels v. Kaylor, 95 Ind. 503. 238, 242, and note; s. c., 3 Cowen, 39; (j) Citing Co. Litt. 260. Hannah -p. Dorrell, 73 Ind. 465 ; Reiley (k) Citing 3 Black. Com. 25, 4. v. Burton, 71 Ind. 118; Kirby v. Bow- (1) 14 Edw. III. St. 1, c. 6. land, 69 Ind. 290; Seig v. Long, 72 X\in.] VARIANCES AND AMMNDMKXT8. 471 fore judgment, as long as the same record and process is before them, in the same manner as the justices had power to amend such record and process before judgment given, by the force of the said statute Edward III.' This statute, afterward made perpetual, confines the amendment to a syllable or letter, but permitted it to be made after judgment. By the 8 Henry VI., C. 12, it was enacted, 'that the King's judges of the courts and places in which any record, process, word, pleas, warrant of attorney, writ, panel or return, which for the time shall be, shall have power to examine such record, processes, words, pleas, warrants of attorney, writs, panels or returns, by them and their clerks, and to reform and amend (in affirmance of the judg- ments of such records and process) all that which to them in their dis- cretion seemeth to be misprision of the clerks therein, except appeals, indictments of treason, and of felonies and outlawries, so that, by such misprision of the clerk, no judgment shall be reversed or annulled. And if any record, process, writ, warrant of attorney, return or panel, be certified defective, otherwise than according to the writing which thereof remaineth in the treasury, courts, or places from whence they are certified, the parties in affirmance of the judgments of such record and process shall have advantage to allege that the same writing is variant from the said certificate ; and that, found and certified, the same variance shall be by the said judges reformed and amended ac- cording to the first writing.' Under the authorities of these statutes alone, can amendments be made of the record when the proceedings are no longer in fiere. and the term is passed in which the record was made. " It will be observed that by these statutes, the judges ' have power to examine the records, processes, words, pleas, warrants of attorney, writs, panels, or returns by them and their clerks,, and to reform and amend all that which to them, in their discretion, seemeth to be mis- prison of the clerks therein.' It has accordingly been held that such amendment of the record can not be made unless there is something to amend by. Thus, the original writ or bill is amendable by the in- structions given to the officer ; the declaration by the bill ; the plead- ings subsequent to the declaration by the paper book, or the draft under counsel's hand; the nisi prius roll by the plea roll; the verdict by the plea roll, memory, or notes of the judge, or notes of the asso- ciate or clerk of assize ; and if special, by the notes of counsel or even by an affidavit of what was proved upon the trial ; the judgment by the verdict, and the writ of execution by the judgment or by the award of it on the roll or by former process. ... A cause im) 1 Tidd, 713. 472 VARIANCES AND AMENDMENTS. [CHAP. proceeds according to fixed and formal rules ; each successive step grows from and rests, upon some precedent action, and should properly be tested by that which constitutes its immediate support. In the case before us there is nothing preceding the order of sale, which it is sought to have entered, that implies that such an order was made."" In the case quoted from, the proceedings were upon a motion for an entry, nunc pro tune, of an order of sale of real estate, and the only proof of the fact that an order of sale had been made was the parol proof of witnesses. The court held that the amendment could not be made on parol evidence alone. AVhere an action is upon a note, or other written evidence of in- debtedness, and there is judgment by default, if the amount for which judgment is rendered is erroneously stated the record may be corrected by the complaint as the amount is ascertained by calculation, the complaint being a part of the record. So the minutes kept by the judge of the court, made at the time, are sufficient foundation upon which to make the amendment, when they show what the record should contain. p But the mere memory of the judge is not sufficient. q While the. rule is well established in this state that a record can not be amended upon parol proof alone, such evidence may properly be resorted to, in addition to anl in aid of the record evidence/ The order amending the record should be by a nunc pro tune order, thus making the record speak from the time the judgment was actually rendered. 9 717. Application must be by motion. The practice is not governed by statute in this state, nor is the right to amend, after the term given by our statute. The authorities are clear, however, that no complaint is necessary. The application must be by motion, which must state the facts upon which it is claimed the amendment should be made.' No pleadings of any kind are contemplated, and no question can be raised by demurrer." (n) Makepeace v. Lukens, 27 Ind. (s) Wilson v. Vance, Adm'x, 55 Ind. 435,437. 394; Bush v. Bush, 46 Ind. 70; Free- (o) Miller v. Royce, 60 Ind. 189; man on Judg., 70; Hannah v. Dor- Sherman v. Nixon, 37 Ind. 153; Sid- rell, 73 Ind. 465; Keily v. Burton, 71 ener v. Coons, 83 Ind. 183; Gray v. Ind. 118. Robinson, 90 Ind. 527. (t) Latta v. Griffith, 57 Ind. 329; (p) Freeman on Judg., 62. Good wine v. Hedrick, 29 Ind. 383; (q) Schoonover v. Reed, 65 Ind. 313. Gray v. Robinson, 90 Ind. 527; Kun- (r) Jenkins v. Long, 23 Ind. 460; nels v. Kaylor, 95 Ind. 503. Freeman on Judg., g 63; Brownlee v. (u) Goodwine v. Hedrick, 29 Ind. Board of Comm'rs, etc., 101 Ind. 401. 383; Bales v. Brown, 57 Ind. 282. XVIII.] VARIANCES AND AMENDMENTS. 473 The statute provides that the court may relieve a party from a judg- ment taken against him through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any proceedings. T It is held that in a proceeding under this section of the statute to supply an omission, the motion or complaint must he filed within two years. w But this section applies to omissions in the proceedings, and not to amendments of the records where no proceedings have been omitted by the court. x 718. Notice must be given. In some of the states, where it is held that the court must look to the record alone in making the amend- ment, and parol proof can not be resorted to for any purpose, it is also held that no notice to the parties is necessary ; but in this state, as I have shown, parol proof may be made in aid of the record, and no amendment can be made after the proceedings cease to be in fieri, with- out reasonable notice to the opposite parties. y No summons is necessary or proper.-d) The notice need not be for ten days or any fixed time. It must be for a reasonable time, and what is a reasonable time must be determined by the circumstances of each particular case. 2 719. May be made after appeal. The fact that an appeal has been taken from the judgment does not take away the right to have it amended, no matter who takes the appeal.* The appellate court has no power to correct the record on appeal. It becomes necessary, therefore, if any defect in the record is discov- ered, that the same shall be corrected and certified to the supreme court, when it becomes a part of the record in that court. b OF BILLS OF EXCEPTIONS. 720. Can not be corrected by parol evidence alone. The rule that a record can not be amended by parol evidence alone has been applied to bills of exceptions. And the time given by the court in which to file a bill of exceptions can not be inserted upon parol proof. d (v) K. S. 1881, 396. Ind. 107; Rew v. Barker, 14 Am. Dec. (w) Douglas v. Kuhn, 78 Ind. 199. 515, 516, and note ; s. c., 2 Cowen, 408. (x) Hannah v. Dorrell, 73 Ind. 465, (b) Busk. Prac. 338 ; Jones, Adm'r, 469. v. Van Patten, 3 Ind. 107. (y) Bales v. Brown, 57 Ind. 282. (c) Hamilton v. Burch, 28 Ind. 233; (z) Hebel v. Scott, 36 Ind. 226. Seig v. Long, 72 Ind. 18; Kirby v. (1) Gray v. Robinson, 90 Ind. 527. Bowland, 69 Ind. 290. (a) Jones, Adm'r, p. Van Patten, 3 (d) Schouiiover v. Reed, 65 Ind. 313. 474 VARIANCES AND AMENDMENTS. [CHAP. A statement in the bill of exceptions, signed by the judge, that time was given, can not be used to show what time was given, as it occurs subsequent to the time when the leave must have been granted to be effectual. 6 OF PROCESS. 721. The summons. The summons may be amended by the complaint in some cases. Thus, it is held that where the Christian name of the plaintiff is erroneously stated in the summons, it may be amended so as to conform to the complaint, when the name is correctly stated in the complaint/ But the summons can not be so amended as to substitute a different plaintiff^ It is also held that where a precipe is filed for a writ, the writ, if erroneous, may be amended by theprecipe. h The summons may be amended by striking out the names of a part of the defendants, where the names have been stricken out of the com- plaint. 1 Where the name of a defendant is erroneously stated in the sum- mons, but the same has been served on the proper person, it may be amended by correcting the name.J The right to amend process has been extended to the attaching of the seal of the officer, after service has been made ; k and where an of- ficer is sued for false imprisonment, he may justify under a writ issued without the officer's seal. 1 The affixing of the seal may be ordered by the court, without any motion, or upon the motion of an interested party; and when attached, it will validate the proceedings had ab initio for all purposes." 1 It may be laid down as a general rule that the summons may be amended, where no injury can result to the parties." 722. Executions. An execution may be amended, as other writs, where there is something to amend by. The right to amend, by at- (e) Schoonover v. Reed, 65 Ind. 313. (j) Weaver v. Jackson, 8 Blkf. 5; (f ) Haines v. Bottorff, 17 Ind. 348; The New Albany and Salem R. R. Co. Woodward v. Wous, 18 Ind. 296; The v. Laiman, 8 Ind. 212; Johnson v. State v. Bryant, 5 Ind. 192; Abshire Patterson, 59 Ind. 287. v. Mather, 27 Ind. 381. (k) Hunter v. The Burnsville Turn- (g) Woodward v. Wous, 18 Ind. 296. pike Co., 56 Ind. 213; Boyd v* Fitch, (h) Beck v. Williams, 5 Blkf. 374; 71 Ind. 306. The State v. Hood, 6 Blkf. 260. (I) Dotninick v. Backer. 3 Barb. 17. (i) Taylor v Jones, 1 Ind. 17; Henry (in) Boyd v. Fitch, 71 Ind. 306. v. The State Bank of Indiana, 3 Ind. (n) Simcoke v. Frederick, 1 Ind. 54. 216. (o) Reily v. Burton. 71 Ind. 118. XVIII.] VARIANCES AND AMENDMENTS. 47") taching the seal of the officer, has been extended to cases where a ju- dicial sale has been made under the writ. It is held that the omission of the seal renders the writ voidable and not void, and therefore the seal may be attached after the sale, thereby legalizing the sale, that would otherwise be in valid. p 723. Officer's return. Great liberality is show r n in permitting the amendment of an officer's return. 1 The return should speak the truth, and generally, if not always, an amendment, for the purpose of making the return state the facts as they really existed at the time, will be permitted. In some of the cases, it is said that the amendment may be made, as of course, by the officer ; but this is not the case, and should not be. Where the writ has been returned and filed, it becomes a record that can not be amended, without the permission of the court/ But while the amendment should be made under the sanction of the court, it is allowed, almost as a matter of course, where it appears not to speak the truth. 3 The amendment of a return is the act of the officer ; and while the consent of the court may be necessary, after the writ is filed, the court has no power to compel the officer to make the amendment.' The question whether the alteration made is material or not, does not affect the right to make the amendment. The most radical changes are permitted by the courts, and there may be said to be no limitation of the right of the officer to make the amendment, or of the court to permit it, except that the return should always be made to conform to the facts. The effect the amendment may have upon rights that may have intervened, upon the basis of the original return, is a matter about which the authorities are conflicting/ (p) Hunter v. The Burnsville Turn- (t) Walter v. Palmer, 18 Ind. 279; pike Co., 56 Ind. 213 ; Reily v. Burton, Malone v. Samuel, 13 Am. Dec. 172, 71 Ind. 118. and note. (q) Dwiggins v. Cook, 71 Ind. 579. (u) Walter v. Palmer, 18 Ind. 279 ; (r) Malone v. Samuel, 13 Am. Dec. Malone v. Samuel, 13 Am. Dec. 172, 172, and note ; s. c., 3 A. K. Marshall, and note. 350. (v) See Malone v. Samuel, 13 Am. (s) Jackson v. The O. & M. R. R. Dec. 172, and the note, in which the Co., 15 Ind. 192; The New Albany, various questions arising upon the etc., R. R. Co. v. Laiman, 8 Ind. 212 ; amendment of an officer's return are The New Albany, etc., R. R. Co. v. thoroughly considered, and numerous Chamberlain, 8 Ind. 278; De Armond authorities cited from the several v. Adams, 25 Ind. 455; Walter v. states. Palmer, 18 Ind. 279 ; The Evansville, etc., R. R. Co. v. Lawrence, 29 Ind. 622. 47G VARIANCES AND AMENDMENTS. [CHAP. There is no time limited in which the amendment shall be made. The question whether the amendment shall be allowed or not, is said to be very much within the discretion of the court, and this discretion \\ill naturally be influenced by the lapse of time and the proceedings had and rights that have intervened, but the right to make the amend- ment is not affected by the lapse of time. w .An officer may, with the sanction of the court, amend his return after his term of office has expired. 1 Some of the cases hold that an officer's return may be amended after his death, but this is inconsistent with the doctrine that the amendment must be made by the officer, and can not be made by the court, and the power to make the amendment after the officer's death may well be doubted. VARIANCE AND FAILURE OF PROOF. 724. Variance. " Sec. 391. No variance between the allegations in a pleading and the proof is to be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended on such terms as may be just. " Sec. 392. Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to. the evidence, or may order an immediate amendment without costs." 725. Variance and failure of proof distinguished." Sec. 393. When, however, the allegation of the claim or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof"? Before an amendment can be made under these three sections of the statute there must be a variance, as the same is defined by the last sec- tion. It must follow, necessarily, that there can be no such amend- ment as will substitute a new cause of action or defense, as the neces- sity for alleging a new cau^e of action or defense could only arise upon failure of proof as to the original complaint or answer. (1) The evident object ,aud purpose of these statutory provisions is to allow an amendment where there is a variance in the proof of an alle- (w) Freeman on Ex., g 359. (1) See Bartlett v. Pittsburg, etc., (x) Dwiggins v. Cook, 71 Ind. 579. Ry. Co., 94 Ind. 281; Cleveland, etc., (y) R. S 1881, 391-393. Ry. Co. v. Wynant, 100 Ind. 160. XVIII.] VARIANCES AND AMENDMENTS. 477 gation of fact, although material aud necessary to make out the cause of action. But the cause of action must remain the same as originally alleged. If the facts alleged and the proof differ in their general scope there is no variance, and no right of amendment can arise under this section. z The fact that the amendment is material does not affect the right. If it is immaterial, there is no necessity for an amendment. It does not matter how material it may be ; so long as it does not amount to a failure of proof the statute gives the right to amend subject to the right of the opposite party to prevent it by a showing that he has been mis- led by the variance. 726. Material only -when opposite party shows by affidavit that he has been misled. Where it appears that there is a vari- ance within the meaning of the statute and not a failure of proof, there is but one test of the materiality of the variance. It is material when it has "actually misled the adverse party to his prejudice in maintaining his action or defense on tJie merits." The question whether he has been .misled must be determined upon a showing of the party by affidavit. He must not only show that he has been misled, but the affidavit must show in what respect he has been prejudiced. This was not the rule in the earlier cases. a But the rule is well established, not only by the direct provision of the code, but by the decided cases. b It must not be overlooked, however, that where there is such a. difference in the allegations of the pleading and the proof as to amount to a failure of proof, it must be conclusively presumed that the amend- ment offered to meet the proof is material, and the amendment not authorized by the statute. In such case no showing is necessary on the part of the opposite party, as there is no variance, and the case is not within the statute. 727. When will be deemed amended in the supreme court. In addition to^the statutory provisions above set out, the stat- ute further provides: " Sec. 658. No judgment shall be stayed or reversed in whole or in part by the supreme court for any defect in form, variance, or im- (z) Howe v. Beckett, 30 Ind 154; (b) Hamilton v. Winterowd, 4o T' <1. The Je&ersonville, etc., TC. R. Co. r. 393; The Jefferson ville, etc., 11. R. Co. Worland, 50 Ind. 339; Straus v. Ross, v. Worland, 50 Ind. 339; Perry r. Bur. 25 Ind. ->00. nett. 65 Ind. 522 ; Boardman v. Griffin. (a) Osborne v. Fulton, 1 Blkf. 2H3 ; 52 Ind. 101; The City of IIuntinrt->'i Taylor r. Coquillard, 5 Blkf. 158; Las- r. Mendenhall. 7:) Ind. 400; Raymond selle v. Hewson, 5 Blkf. 161. v. Parisho, 70 Ind. 256. 478 VARIANCES AND AMENDMENT. [CHAP. perfections contained in the records, pleadings, process, entries, returns, or other proceedings therein which by law might be amended by the court below. But such defects shall be deemed to be amended in the su- preme court. Nor shall any judgment be stayed or reversed in whole or in part where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below." c This section of the statute is usually construed in connection with those providing for amendments in case of variances, and it is held that where the amendment might have been made in the court be- low it will be deemed, in the supreme court, to have been made. d It has been held that an amendment that must be verified can not be deemed to have been made. 6 728. How question of the right to amend raised. I have shown that the amendment in case of a variance can only be regarded as material where the affidavit provided for by the statute is made. Without the affidavit, if the variance between the pleadings and the proof does not amount to a failure of proof, no question can be raised as to the materiality of the amendment, and the supreme court will presume it to have been immaterial. In regard to the necessity for an affidavit, no distinction seems to have been made in many of the cases between amendments made to avoid a variance and such as are made under the section providing -for amendments generally. I have at- tempted to show that sections 393 and 394 have no reference to amendments made on the trial. f The affidavit must show, as required by section 391, that the party has been misled to his prejudice, "in maintaining his action or defense upon tfie merits," and not " in his preparation for trial," as in case of an amendment under sections 394 and 395, before the trial. Where there is a failure to prove the claim or defense in its general scope and meaning, there is no waiver by a failure to make affidavit at the time ; and where objection is made to evidence offered, that does not go to prove the cause of action or defense alleged, but another and different one, the evidence should be excluded. No amendment can make the evidence competent, and the question arises upon a motion (c) R. S. 1881, 658. Ind. 236; Perry v. Barnett, 65 Ind. (d) Torr v. Torr, 20 Ind. 118; Me- 522; Boardmun <-. Griffin, 52 Ind. 101 ; Kinleyu. Shank, 24 Ind. 258; Lowry The City of Huntington v. Mendenhall, v. Button, 28 Ind. 473; Numbers v. 73 Ind. 460; Krutz v. Howard, 70 Ind. Bowser, 29 Ind. 491 ; Barnes v. Smith, 174; Scheib'e ?-. Law, 65 Ind. 332; 34 Ind. 516; Lucas v. Smith, 42 Ind. Busk. Prac. 388. 103; Hamilton v. Winterowd, 43 Ind. (e) Raymond a. Parisho, 70 Ind. 256. 393; Krewson v. Cloud, 45 Ind. 273; (f) Ante, g 698. The Bristol Hydraulic Co. v. Boyer, 67 XVIII.] VARIANCES AND AMENDMENTS. 479 for a new trial, on the ground that the verdict is not sustained by suf- ficient evidence. To hold otherwise would be a plain perversion of the object and meaning of the statute. 8 729. Description of written instruments. The effect of a variance in the description of the written instrument pleaded and the one offered in evidence depends upon whether it is the foundation of the action or not. If it is a variance between the complaint and the exhibit, the iustrumeut being made a part, by copy, or by filing the original, the exhibit controls the allegations of the pleading. h There- fore, if the exhibit is correct, although the instrument be misdescribed in the body of the pleading, there is no variance. But where there is a variance between the exhibit and the original offered in evidence, or where the written instrument is described in the pleading, but not the foundation of the action, the statute applies as in other cases, and the variance will only be material if it misleads, the party or makes out another and different cause of action.' The statute provides that " any variance between any pleading and copy of a written instrument, filed as to matter of description or legal effect, may be amended at any time (as of course) before judgment, without causing a continuance." J This statute does not apply to a variance between the pleading and the proof, but between the allegations of the pleading and the exhibit. As the exhibit controls the averments of the pleading, no amendment is necessary, and the statute is unimportant. ' (g) Boardman v. Griffin, 52 Ind. (i) Krutz v. Howard, 70 Ind. 174; 101; Perry v. Barnett, 65 Ind. 522; Lucas v. Smith, 42 Ind. 103 ; Krewson The City of Huntington v. Menden- v. Cloud, 45 Ind. 273; 1 Bates' Ohio hall, 73 Ind. 460; Johnson v. Moss, 45 PI. and Par. 185; Patterson v. Jones,- Cal. 515. 27 Ind. 457; Davis v. Doherty, 69 (h) Ante, 416. Ind. 11. (j) B. S. 1881, g 362. 480 THE TKIAL. [[CHAP. CHAPTER XIX. THE TRIAL. SECTION. 730. Trial defined. ISSUES. 731. Generally. 732. Order of forming issues. ISSUES OF LAW. 733. How raised and tried. ISSUES OF FACT. 734. Raised by answer and reply. 735. By answer in abatement first tried. 736. May be waived. WHEN CAUSE MAY BE CALLKD FOR TRIAL. 737. At first term ; exception. CONTINUANCE. 738. Generally. 739. Absence of evidence. 740. Evidence must be material. ' 741. Must show due diligence. 742. The name and residence of the witness. 743. Probability of procuring the tes- timony. 744. That the facts can not be proved by any other witness. 745. The facts to which he believes the witness will testify, and that he believes them to be true. 746. Competency of the witness. 747. If opposite party will admit that the witness will testify to the facts, or, if it is documentary evidence, that it is true, contin- uance will not be granted. SECTION. 748. On account of the absence of a party. 749. On account of the absence of an attorney. 750. "Who may make the affidavit. 751. On suppression of depositions, or filing same too late. 752. Second application during same term. 753. Affidavit may be amended. 754. For process. 755. For answers to interrogatories. 756. Defendant constructively sum- moned. TRIAL BY JUKY. 757. Number of jurofs. HOW SELECTED. 758. Eegular panel. 759. Special venire. 760. Special jury. 761. Struck jury. 762. Talesmen. 763. Qualification of jurors. 764. Juror must be disinterested. 765. Having formed or expressed an opinion. 766. Public interest. CHALLENGES. 767. For cause. 768. Peremptory challenges. 769. Challenge to the array. 770. Challenge to the poll or to the array must be made before the jury is sworn. 771. Discharge of competent juror. XIX.] THE TRIAL. 481 772. Examination of juror as to his competency. 773. Juror having suit in court. 774. Swearing the jury. 775. Mental and physical qualifica- tions. 776. Persons exempt from service as jurors. OPEN AND CLOSE. 777. Party having the burden of the issue entitled to begin. 778. The opening statement. 779. The evidence. 780. The closing argument. INSTRUCTIONS. 781. Special instructions. 782. May be modified, but not ver- bally. 783. When proper instructions asked may be refused. 784. General instructions. 785. Must be in writing when re- quested. 786. Error to give any part of instruc- tions orally, over request that they be in writing. 787. Must be applicable to the issues and the evidence. 788. Must not assume a fact to be true. 789. When the court may instruct the jury to find for either party. 790. Additional instructions may be given where the jury disagrees. 791. Instructions must be numbered. 792. Must be settled before the argu- ment, when requested. 793. When erroneous instructions harmless. 794. How erroneous instructions cured. EXCEPTIONS TO INSTRUCTIONS. 795. When must be taken. 796. How to be taken. 797. The jury may view property or 821. Generally. place. 798. The jury must be cautioned, when allowed to separate. 31 799. What papers may be taken to the jury room. 800. Polling the jury. 801. When the jury may be discharged. TRIAL BY THE COURT. 802. Governed by same rules as trial by jury. 803. Special finding. 804. Must be at the request of one or both of the parties. 805. Must be in writing, and should be signed by the judge. 806. Must contain the facts not evi- dence. 807. Must contain all the facts neces- sary to a recovery. 808. Only facts within the issues should be included in the find- ing. 809. Exception must be to the conclu- sions of law. 810. Does not waive motion for new trial or for a venire de novo. TRIAL BY AGREED CASE. 811. The statute. 812. Affidavit necessary to give the court jurisdiction. 813. Statement of facts must show a cause of action. TRIAL BY REFEREES. 814. What may be referred. 815. How referees selected. 816. The trial conducted the same as a trial by the court. 817. Nature and effect of referees' re- port. 818. How exceptions must be taken. 819. Objections to the report. 820. Referees' duties end with the re- port. TRIAL BY MASTER COMMISSIONER. WHAT CAUSES ARK TRIABLE BY JURY. 822. The statute. 482 THE TRIAL. [CHAP. "WHAT CAUSES WERE TRIABLE BY JURY HOW JURY TRIAL MAY BE WAIVED. UNDER THE CODE OF 1852. 828. The statute. 823. Civil actions. 829. "When jury waived by failure to 824. Causes in which the right of trial appear. by jury has been held not to 830. What will amount to oral consent exist. entered of record. 825. Causes that have been held to be triable by jury. DISMISSAL OF ACTION. 831. When action may be dismissed. CAUSES TRIABLE EXCLUSIVELY BY 832. Dismissal in vacation. COURTS OF CHANCERY, PRIOR TO 833. By the court. JUNE 18, 1852. 834. Effect of dismissal; stay of pro- 826. General discussion. eeedings in second action for 827. Causes enumerated. payment of costs. 835. Set-off; counterclaim. 730. Trial defined. " The trial is a judicial examination of the issues, whether of law or of fact, in an action. " a ISSUES. 731. Generally. "Sec. 406. Issues arise on the pleadings where a fact or conclusion of law is maintained by one party and controverted by the other. They are of two kinds : "First. Of law. "Second. Of fact. " Sec. 407. An issue of law arises upon demurrer to the complaint, answer, or reply, or to some part thereof. ' ' Sec. 408. An issue of fact arises : "First. Upon a material allegation in the complaint denied by the answer. "Second. Upon material new matter in the answer denied by the reply. "Third. Upon material new matter in the reply, which shall be con- sidered as controverted by the opposite party without further pleading." b The word " issue," as used in the statute, has a technical meaning. It is the point in dispute between the parties on which they put their cause to trial. c Under the code system of pleading there may be several issues of fact pending at the same time, which may be tried in the same ac- tion. The object of the code is to present the whole controversy con- nected with the plaintiffs original cause of action, or matters that may be pleaded as set-offs thereto, in one and the same action. To (a) Jl. 8. 1881, 517. (c) Wolcott v. Wigton, 7 Ind. 44. (b) K. S. 1881, H 406, 407, 408. XIX. j THE TRIAL. 483 this end counterclaims and set-offs are permitted, and the parties are required, under the penalty of the payment of costs in a subsequent action, to set up any matters of counterclaim that may be properly pleaded. Under the code of 1852, as I have shown, set-offs and counterclaims were treated rather as answers than causes of action on the part of the defendant. It was provided, therefore, that an issue of fact should arise upon a set-off or counterclaim presented in the answer and denied in the re- ply* There was no provision for other than the three pleadings, the complaint, answer, and reply, in any case, and under the code there could not be two sets of pleading where there was a counterclaim, as there was no provision by which the plaintiff was permitted to file an answer or the defendant a reply, Under the later rulings of the supreme court, to the effect that a counterclaim was not a defense, but a cause of action on the part of defendant, the code system of pleading was incomplete, as the issue on a counterclaim or complaint was formed by a reply. The present code is consistent with the decided cases. It is pro- vided, as I have shown elsewhere, that " the pleading to a coun- terclaim shall be an answer by the defendant thereto, and a reply to new matter in the answer, with the right to demur to any of them as if the counterclaim were an original complaint." e The section providing how issues of fact arise, has amended the old code by striking out the provision that an issue on a set-off or counter- claim should be presented by the answer and reply. The provision that an issue shall arise " upon a material allegation in the complaint denied by the answer," applies to a complaint by the defendant, pleaded as a counterclaim as well as to the original complaint. The result is that there may be two distinct sets of pleadings presenting separate and distinct issues to be tried in the same action. There is no distinction between the issues made upon a counterclaim and those arising upon the original complaint. As to matters of set-off, there is no provision of the code authorizing an answer to a set-off. While it must be regarded as a cause of action, the code still treats it as matter that must be pleaded by way of answer, the issue thereon to be made by the filing of a reply/ With these different modes of forming an issue and the different is- sues that may be presented upon the trial, great confusion is likely to occur. (d) 2 R. S. 1876, p. 163, 318. (f ) R. S. 1881, 347, 357. (e) R. S. 1881, 357; ante, 683. 484 THE TRIAL. [CHAP. 732. Order in which issues should be formed. The k.Shoaf,881nd.395; Vol.3, p. 547. (1) Form of affidavit, Vol. p. 3, p. 547. XIX.] THE TRIAL. 489 What will amount to due diligence, as it must be stated in the affi- davit, will be fouud decided in the cases cited in the foot-note. 8 The question, whether the party has used the proper diligence or not, must depend so much upon the facts and circumstances of each case that no rule can be laid down on the subject. 742. The name and residence of the witness. The affidavit must show where the absent witness resides, if his residence is known. f It is not a sufficient excuse for a failure to give the residence of the witness to state that his residence is unknown. It must be shown that due diligence has been used to ascertain his place of residence. 8 The same rule applies to the requirement that the name of the wit- ness shall be given, if known. By the earlier statute, the name of the witness was not required to be given. h 743. Probability of procuring the testimony. The affidavit must not only show that the evidence can not be procured at the pres- ent time, but it must show, iu addition, a reasonable probability of procuring the evidence within a reasonable time. 1 It is held that it is not sufficient to state, in general terms, that the evidence may be procured where the facts stated show that there is no such probability^ 744. That the facts can not be proved by any other wit- ness. It is necessary that the affidavit should state that the same facts can not be proved by any other witness, whose testimony can be as readily procured. But it has been held that, although the party may have knowledge of the facts, and is competent to testify as a wit- ness, he is entitled to a continuance for the testimony of a disinterested witness. k 745. The facts to which he believes the witness will tes- (e) Hall" v. The State, 8 Ind. 439; Ind. 239; Osborn v. Storms, 65 Ind. Deming v. Patterson, 10 Irid. 251; 321; Deming v. Ferry, 8 Ind. 418; Mugg v. Grave.*, 22 Ind. 230; Yater r. Hutts v. Schoaf, 88 Ind. 3'.io. Mullen, 23 Ind. 5G2; McKinley v. (f) Beavers v. The State, 58 Ind. 530. Shank, 24 Tnd. 258; Ward v. Culyhan, (g) Hall v. The State, 8 Ind. 430; 30 Ind. 395; Miller r. The State, 42 McKinlay v. Shank, 24 Ind. 258. Ind. 544; Wolcott r. Mack, 53 Ind. (h) 2 R. S. 1876, p. 164, ? 322. 209; Briggs v. Garner, 54 Ind. 572; (i) Hall v. The State, 8 Ind. 439. Leary r. Nave, G6 Ind. 220; Kirland (j) The Ohio and Mississippi R. R. r. Kline, 16 Ind. 313; Murphy v. The Co. r. Dickerson, 59 Ir.d. 317; Deming State, 6 Ind. 490; Lane v. The State, v. Patterson, 10 Ind. 251. 27 Ind. 108-; Brown v. Shearon, 17 (k) Fox r. Reynolds, 24 Ind 46. 490 THE TRIAL. [CHAP. tify, and that he believes them to be true. The statute re- quires that the affidavit shall show the facts " he believes the witness will testify to." ' It is important to the party making the application for a continu- ance that this requirement of the statute is fully complied with. For his own benefit he should state the facts fully. The opposite party may deprive him of the continuance by admitting that the witness will testify to the facts set out in the affidavit. m If the facts are not fully set out the party may lose the benefit of important testimony, as he can only use such facts as are stated in the affidavit, no matter what other facts might be proved by the witness. It is not unusual for a party to set out in his affidavit sufficient facts only to entitle him to a continuance, with a view to withhold from the other party a knowledge of his evidence, but this is a dangerous prac- tice. The party making the affidavit must swear that he believes the facts stated to be true." 746. Competency of the witness. It has been held by the su- preme court that an affidavit for a continuance must show that the ab- sent witness is competent. The statute does not require that the com- petency of the witness shall be shown. It is not a matter that is always easy to determine, and the party making the affidavit should not be compelled to determine, under oath, a legal question that may arise on the trial of the cause. It is evident, however, that the adverse party, by making the admission that the party will testify to the facts, should not waive the right to object to the admission of the evidence, on the trial, on the ground that the witness is incompetent. Where the facts stated in the affidavit disclose the incompetency of the wit- ness to testify to the matters set out therein, it will be insufficient. p The question whether the continuance should be granted or not must be determined from the affidavit alone. q No counter affidavits are allowed. Therefore it can not be shown by other means that the witness is not competent. But where there is nothing to show the incompetency of the witness, and the statute does not require a showing that he is competent, the court must pre- sume it for the purposes of the application for a continuance. When the admission is made, and the evidence is offered at the trial, (1) French v. Blanchard, 16 Ind. (o) French v. Blanchard, 16 Ind. 143; Jones v. The State, 11 Ind. 357; 143. Fleming v. The State, 11 Ind. 234. (p) Jacobs v. Finkle, 7 Blkf. 432; (m) Post, ? 747. Carthage Tp. Co. v. Andrews, 102 Ind. (n) Fausett v. Voss, 12 Ind. 525. 138. (q) Cutler v. The State, 42 Ind. 244. XIX.] THE TltlAL. 491 the adverse party should be permitted to object to the evidence ou the ground of the incompetency of the witness, and if the witness is not competent the evidence should be excluded. 747. If opposite party will admit that the witness will testify to the facts, or if it is documentary evidence that it is true, continuance will not be granted. The court can not postpone the trial if the adverse party will consent that the evidence, if documentary, shall be taken as true, or that the witness will testify to the facts stated in the affidavit/ In criminal cases the state must admit that the facts it is believed the witness will testify to are true. 9 But in civil cases the adverse party is only required to admit that the witness will testify to the facts as true.' The statute reserves to the party making the admission the right to impeach the absent wit- ness, the same as if he were present and testified to the facts. The adverse party can not be required to admit that the witness will testify to facts that are immaterial, or to mere conclusions, although they are stated in the affidavit. The question should be determined at the time the admission is to be made what facts are material, and the admission should only go to those facts." The manner of presenting the facts upon the trial is not provided for by statute, and the practice in this respect is not well settled. The better practice would seem to be to read, not the entire affidavit as evi- dence, but the facts set out, or such of the facts as have been held to be material and competent evidence, and this should be accompanied by the admission of the adverse party that the witness named would, if present, testify to the facts as true. 748. On account of the absence of a party. The statute does not provide what shall be shown to authorize a continuance on ac- count of the absence of a- party to the action. Where the only reason shown is that his presence is necessary as a witness the same affidavit should be made as in the case of another witness, except that the same diligence in having him subpoenaed need not be shown. While diligence in subpoenaing a party is not necessary the affidavit must show that he has used the proper diligence to be present at the trial. 7 (r) R. S. 1881, 410. (u) AVheeler v. The State, 8 Ind. (s) R. 8. 1881, 1781; Wheeler v. 113; Carmon v. The State, 18 Ind. 450. The State, 8 Ind. 113; Carmon v. The (v) Yater. v. Mullen, 23 Ind. 562, State, 18 Ind. 450; Was?'l r. The 566; Davis v. Luark, 34 Ind. 403; State, 26 Ind. 30. Montgomery v. Wilson, 58 Ind. 591. (t) Uawson v. Hemphill. 50 Ind. 422; Whitehall v. Lano, 61 Ind. 93. 492 THE TRIAL. [CHAP. Where the application is made by one party on account of the ab- sence of a co-plaintiff or co-defendant, the affidavit must show that due diligence has been used to procure his testimony. w In addition to the right of a party to testify in his own behalf, it is his right to be present at the trial. In many cases this privilege is a matter of importance, and where the affidavit shows a necessity for the presence of the party in court and a probability that he can be present within a reasonable time, together with the showing of a sufficient ex- cuse for his absence, a continuance should be granted under the gen- eral power given the court to grant a 'continuance " for good cause shown," although his testimony may not be material or he may not be competent to testify. 1 Where a witness is absent, the affidavit need not show the reason for his absence, 3 " but where the application is based upon the absence of the party asking for the continuance, sufficient reason for his absence must be shown. 749. On account of the absence of an attorney. Cases may arise where the absence of an attorney is sufficient ground for a contin- uance, and when such a case is presented the court has the power to grant the continuance, and the power should be exercised. It must appear from the affidavit that the party has used the proper diligence to have the attorney present, and that he will be prejudiced by being compelled to go to trial in his absence. 2 An affidavit may be sufficient to postpone the trial to a later day in the term that would be insufficient to warrant a continuance until an- other term. 8 750. Who may make affidavit. The statute does not require that the affidavit for a continuance shall be made by the party, and it has been held that it may be made by his attorney or agent, without in any way accounting for the absence of the party. b 751. On suppression of depositions or filing same too late. Where a party has taken the deposition of a witness, his testimony being material, and the deposition is suppressed, he is entitled to a continuance almost as of course. (w) Lane v. The State, 27 Ind. 108. v. Belck, 97 Ind. 73; Eslinger v. East, (x) Graves v. Rayl, 19 Ind. 83; 100 Ind. 434; Vol. 3, p. 547. Montgomery v. Wilson, 58 Ind. 591; (a) Hubbard v. The State, 7 Ind. Pate v. Tait, 72 Ind. 450. 160. (y) Cutler v. The State, 42 Ind. 244. (b) Espy v. The. State Bank, 5 Ind. (z) Whitehall v. Lane, 61 Ind. 93; 274; Abbott v. Zeigler, 9 Ind. 511. Bartel v. Tieman, 55 Ind. 438; Belck (c) Carpenter v. Dame, 10 Ind. 125. XIX.] THE TRIAL. 493 It is provided by statute that depositions intended to be read in evidence must be filed in court at least one day before the time at which the case in which such deposition is to be used stands on the docket for trial, and if filed afterwards and claimed to be used on the trial the adverse party shall be entitled to a continuance upon showing good cause by affidavit.* 1 In order to entitle a party to a continuance, under this section, he must show by affidavit that he has been prejudiced by the filing of the deposition after the time fixed by the statute, in such manner that he is not prepared for trial. 752. Second application during same term. There is no stat- utory provision against a second application for a continuance, during the same term, but it is the duty of the party in making his first ap- plication to state all of the causes that exist at the time ; and where a second application is made it is necessary, if the cause existed when the first affidavit was filed, that the second affidavit should show a suf- ficient excuse for not-having included it in the first. e 753. Affidavit may be amended. Where an affidavit has been presented, and passed upon, it may be amended with leave of the court. The court is not bound to grant leave to amend, but may do so in its discretion. It has been held that there is no rule of practice authorizing the court to allow a party to amend an affidavit after the motion has been decided/ It may be said, also, that there is no rule of practice against the court exercising such right. As the court has power to grant a con- tinuance at any stage of the cause for good cause shown, and a second application is allowed, no good reason can be assigned why the court should not, in a proper case, permit the amendment to avoid injustice. It is clearly a matter within the discretion of the court. A refusal to permit the amendment is not a cause for reversal in the supreme court. 15 754. For process. The plaintiff is entitled to have all the de- fendants before the court before proceeding with the cause. He should require this, however, before making up the issues as between him and the defendants served. Otherwise, he is not entitled to a continuance, when the cause is called for trial, for service of process on the defend- ants not served. 1 ' (d) H. S. 1881, 436. (g) Pence v. Christman, 1"> ln 771. Discharge of competent juror. The parties are entitled to a trial by jurors selected by the proper officers, whether as the regular panel or as talesmen, where they are competent and not engaged in the trial of another cause. It is error to discharge a competent (e) Cowgill v. Wooden, 2 Blkf. 332. note; s.c., 2 Bailey, 66; Proffatt's Jury (f ) Eight v. Langdon, 53 Ind. 81. Trials, 198. (g) Rice v. The State, 16 Ind. 298; (h) Kingen r. The State, 46 Ind. Barlow v. The State, 2 Blkf. 114; Gil- 132; Croy v. The State, 32 Ind. 384; looley v. The State, 58 Ind. 182; Kin- Gillooley v. The State, 58 Ind. 182; gen v. The State, 46 Ind. 132; Croy v. Rollins r. Ames, 9 Am. Dec. 79, 81, and The State, 32 Ind. 384; Patterson v. note; s. c , 2 N. H. 349. The State, 70 Ind. 341; Parmele v. (i) Rice v. The State, 16 Ind. 298; Guthery, 1 Am. Dec. 65; s. c , 2 Root, Hudspeth v. Herston, 64 Ind. 132. 185; Davis v. Allen, 22 Am. Dec. 386, (j) Bradford v. The State, 15 Ind 388, and note; s. c., 11 Pick. 466; State 347. r. Crank, 23 Am. Dec. 117, 128, and XIX. J THE TRIAL. 503 juror over the objection of either party, except upon the challenge of the opposite party or for ofcher good cause shown. k 772. Examination of juror as to his competency. The ex- tent to which a party should be allowed to go in the examination of a juror, for the purpose of ascertaining whether he should be allowed to remain on the jury or not, can not be governed by any fixed rules. Under the practice in this state great latitude is generally given in the examination. It is evident that inquiries to be submitted to the juror should be permitted to go beyond the mere question of his competency. The party has a right to know what his feeling is toward the parties to the action and in connection with the subject-matter of the action, as a means of determining whether in case he is found to be competent there is still ground sufficient to warrant a peremptory challenge. As the examination is usually conducted in the presence of other persons who have^been called to try the cause, and may be retained as jurors, care should be taken by the court that the juror under examination is not allowed to disclose any facts connected with the merits of the cause or that will tend in any way to influence them in arriving at a verdict. In the examination the rights of the juror must be respected. A question, the answer to which will tend to his infamy or to subject him to a criminal prosecution, he can not be compelled to answer, and the question should not be allowed. The facts must be proved by ex- trinsic evidence. 1 In some of the earlier cases it was held that the juror could not be asked whether 'he had formed or expressed an opinion as to the guilt or innocence of the prisoner in a criminal action, because the answer might tend to disgrace him. m Under the code the inquiry is permitted- It is not proper, however, to inquire what his opinion is, or what has been said to him, or by him to others, as to the merits of the contro- versy, or any opinion he may have formed or expressed. The juror may be asked, with reference to a material point at issue in the cause, whether he has formed or expressed an opinion as to that particular question or issue." 773- Juror having suit in court. It was provided by an act passed in 1852, prescribing the manner of impaneling petit jurors, that (k) Meyers v. The State, 20 Ind.511. (m) Jones v. The State, 2 Blkf.475 ; (1) Hudson v. The State, 1 Blkf. Proffatt's Jury Trials, 196. 317; Jones v. The State, 2 Blkf. 475; (n) Trout v. Williams, 29 Ind. 18. Proffatt's Jury Trials, 196. 504 THE TRIAL. [CHAP. the sheriff should in no case select or summon as talesman any person who had a cause pending in such court for trial at that term. Under this statute, it was doubted by the supreme court whether the statute was merely- directory as to the duty of the sheriff, or whether the juror having a cause pending was sufficient ground for challenge. 1 * The present statute regulating the manner of selecting juries con- tains no such direct provision ; therefore the question is unimportant. 774. Swearing the jury. The jury must be* sworn after they have been agreed upon and accepted. The statute provides : " Sec. 530. Before the commencement of the trial, an oath must be administered to each juror that he will well and truly try the matter in issue between the parties, and a true verdict give according to law and evidence. " q The plain meaning and intention of the statute is that each juror shall be sworn separately, but, perhaps as a matter of convenience, the form has been changed in practice to " you and each of you," and the whole panel is sworh at the same time. Parties have a right to have the jury sworn or affirmed as provided by the statute, but any objection to the want of an oath or its form should be made at the time. r Where the record fails to show whether the jury has been properly sworn or not, it will be presumed when it is shown generally that they were sworn. 8 775. Mental and physical qualifications. The statute pro- vides no standard by which to determine the degree of intelligence re- quisite for a juror. That he must be of sound mind is, of c mrse, im- plied. In some of the states it is required that a person shall be able to read and write or he is incompetent, but this is not the law in Indi- ana. That a juror should understand the English language and be of sufficient intelligence to know and understand what is said by the court, witnesses, and counsel, is beyond question.' Beyond this the matter must be left to the sound discretion of the court. The mere question of age is not a ground of challenge where the juror is of sufficient ago to be a voter of the county. This was held (o) 2 R S. 1876, p. 30, \ 2. (s) Mann v. Clifton, 3 Blkf. 304; (p) The Miami Valley Fur. Co. v. Judah v. McNamee, 3 Blkf. 269. Wesler, 47 Ind. 65. (t) The Lafayette Plank Koad Co. (q) Pv. S. 1881, 530. v. The New Albany, etc., R R Co., 13 (r) Lindley v. Kindall, 4 Blkf. 189; Ind. 90; Proffatt's Jury Trials, 118; Applegate v. Boyles. 10 Ind. 435. Hogshead v. The State, 9 Humph. 59. XIX.] THE TRIAL. 50l> under a statute exempting persons over sixty years of age from service ou juries." The exemption on account of old age was held to be personal to the juror who might claim the exemption or not, as he pleased. It was not ground for challenge. 776. Persons exempt from service as jurors. The question of the right of a party called as a juror to exemption is unimportant as a question of practice, where the right actually exists, as the right to to be excused is personal to the juror and is not ground for a challenge. 7 But where the juror is not in fact exempt and is discharged over the objection of either party, whether upon the ground of supposed ex- emption or other insufficient cause, it is error. w The statute points out the manner of selecting jurors, by officers whose sole duty it is to make the selections. No party should be re- quired to try his case by a jury taken, in whole or in part, from the bystanders, until the regular panel is legally exhausted. This right is frequently violated by excusing jurors without other cause than their convenience. In some of the circuits in the state the liberality of the courts in excusing members of the regular panel has become a positive evil, that deprives the law regulating the selection of juries of much of its force. In case of the grand jury the causes that will excuse from service are expressly provided. 1 A member of the petit jury should not be excused for less weighty reasons. OPEN AND CLOSE. 777. Party having the burden of the issue entitled to begin. The right to open and close the evidence and argument is re- garded,* in the practice, as one of importance. The rule is well settled that the party who has the burden of the issue has the right to begin. y (u) The State v. Miller, 2 Blkf. 35. Judah v. The Trustees of Vincennes (v) Ante, 775. University, 23 Ind. 272; List v. Korte- ( w) Ante, 771. peter, 26 Ind. 27 ; Fetters v. The Mun- (x) R. S. 1881, 1649. cie National Bank, 34 Ind. 251 ; Jarboe (y) R. S. 1881, 53:}, 536; Shank v. v. Scherb, 34 Ind. 350; Smith v. Dallas, Fleming, 9 Ind. 189; Gaul v. Fleming, 35 Ind. 255; Williams v. Allen, 40 10 Ind. 253; Patton v. Hamilton, 12 Ind. 295; Sehee v. McQuilken, 59 Ind. 256; Zehner v. Kepler, 10 Ind. Ind. 269; Lyman . Buckner, 60 Ind. 290; Ashing v. Miles, 10 Ind. 329; 402; Heilman v. Shanklin, 60 Ind. Bowen v. Spears, 20 Ind. 146; The 424; Rothrock v. Perkinson, 61. Ind. City of Aurora v. Cobb, 21 Ind. 492; 39 ; Stevens v. Overturf, 62 Ind. 331 ; 50G THE TRIAL. [CHAP. The question as to which party has the burden of the issue has not always been so easy to determine. The general rule is, that where the plaintiff is bound to offer any proof to entitle him to recover, or to es- tablish the amount he is entitled to recover, he has the right to the open and close. 2 This was the rule at common law, but it was held in an early case that the rule was changed by the code, and that the plaintiff could not claim the open and close, on the ground that he must prove the amount of his damages." But this case was overruled in the case of Fetters v. The Muucie National Bank, supra. This being the rule, the question whether the general denial is pleaded or not, can not determine the question of the plaintiff's right to open and close. He is bound to prove the amount of his damages, where they are unliquidated, whether the denial is in or not. The statute puts in the denial as to the amount the plaintiff is entitled to recover. Where the plaintiff's damages are liquidated or can be ascertained by calculation, no evidence is necessary on his part if the denial is not pleaded, and the defendant is entitled to the open and close. It is held that, in actions on promissory notes providing fora reason- able attorney's fee, the plaintiff is entitled to begin, although the lia- bility on the note is admitted. The amount of the attorney's fee is unliquidated, and the plaintiff must prove what amount is reasonable. 1 * It is otherwise where the amount of the attorney's fee is fixed by the contract, and where the complaint charges a reasonable fee to be a cer- tain sum, the defendant may claim the right to begin by admitting the amount charged. Where the plaintiff's complaint is in different paragraphs, and there is a denial pleaded to one and affirmative defenses to the other, and there is no evidence to support the paragraph to which there is a" denial, the defendant is entitled to the open and close of the argument. Pate v. The First National Bank of Howard v. Kisling, 15 Ind. 83 ; Grand Aurora, 63 Ind. 254; Hyatt v. Clem- Rapids, etc., 11. R. Co. v. Horn, 41 Ind. ents, 65 Ind. 12; Tull v. David, 27 479;. The City of Aurora v. Cobb, 21 Ind. 377; Hamlyn v. Nesbit, 37 Ind. Ind. 492; McLees v. Felt, 11 Ind. 218. 284; Kent v. White, 27 Ind. 390. (a) Judah r. The Trustees of the (z) The Baltimore and Ohio R. R. Vincennes University, 23 Ind. 272, 282. Co. v. Whinney, 36 Ind. 436; Fetters (b) Camp v. Brown, 48 Ind. 575. a. The Muncie National Bank, 34 Ind. Hyatt v. Clements, 65 Ind. 12. 251; Smith v. Dallas, 35 Ind. 255; (c) Zehner v. Kepler, 16 Ind. 290. XIX.] THE TRIAL. 507 But if there is any evidence to support the paragraph, the plaintiff may begin. d The plaintiff can not, by immaterial or improper averments in his complaint, claim the right to opeji and close. If the material allega- tions are confessed, other averments must be disregarded. 6 Where the defendant files a counterclaim only, the plaintiff's cause of action is admitted, except as to the amount of damages, and where his damages are liquidated the defendant has the open and close. f But the issues formed upon the counterclaim are the same as upon the original complaint, and if no proof is necessary from the plaintiff in support of his complaint, and he assumes the burden of the issue upon the counterclaim by an answer thereto in confession and avoid- ance, he may begin. (1) Where an answer professes to be in confession and avoidance, but is, in fact, an argumentative denial, the plaintiff is entitled to the open and close. 8 Where the defendant has so pleaded as to cast the burden of the is- sue upon the plaintiff, he can not, as a matter of right, withdraw the general denial after the jury is sworn and claim the right to begin. It is a matter within the discretion of the court. 1 ' 778. The opening statement. "The party upon whom rests the burden of the issues may briefly state his case and the evidence by which he expects to sustain it."' The question whether the plaintiff or defendant has the burden of the issue must, at the beginning of the trial, be determined from the pleadings. The evidence may be such, in some cases, as to shift the right in the closing argument.-* The opening statement should consist of a plain statement of the case and the evidence to support it. An argument of any of the facts stated, or their effect upon the rights of the parties, is improper, and should not be allowed. The issues should first be stated briefly, or read if necessary, and the points in dispute carefully and clearly pointed out. This should be followed by a statement in brief of the evidence to be given in support of the case. Although the jury are not the judges of the law, it is proper, in an opening of the case, to state what (d) Jackson . Pitsford, 8 Blkf. 194; ' (g) Rothrock v. Perkinson, 61 Ind. "Williams v. Allan, 40 Ind. 295; Shaw 39. . Barnhart, 17 Ind. 183. (h) Mason v. Seitz, 36 Ind. 516. (e) List v. Kortepeter, 20 Ind. 27. (i) R S. 1881, 533, sub. 1- (f ) Schee v. McQuilken, 59 Ind.269. (j) Post, 780. (1) McCormick Harvesting, etc., Co. v. Gray, 100 Ind. 285. 508 THE TRIAL. [CHAP. the law applicable to the case is believed to be. The importance of a clear and concise opening statement can not be overestimated; but it must be admitted that there is no part of the management of a 'case in which the attorney will find jmore difficulty, or in which he is more likely to make a failure. " Strange as it may appear, there is nothing more difficult in the art of advocacy than effectively to open a case to a jury. The proof of this is the rarity of the exhibition. How few of our advocates accomplish it to the entire satisfaction of a critical listener.'" 5 Perhaps the greatest mistake, and the one the most frequently com- mitted, is that of making the opening statement stronger than the evidence upon the trial. This is a mistake that should be carefully guarded against. 1 After the opening statement, by the party having the burden of the issue, "the adverse party may briefly state his defense and the evi- dence he expects to offer in support of it." m Neither party is required to make an opening statement. He may do so or not, at his option. 779. The evidence. The party having the burden of the issues must fh-st produce his evidence. The adverse party wfll then produce his evidence, which may then be rebutted." The court sometimes permits the introduction of evidence to go farther than the rebuttal. It is a matter within the discretion of the court, but can not be claimed as a matter of right under the statute. The rules governing the admissibility of evidence, the competency of witnesses, and other questions connected with the proof to be made in a cause, will be considered in a subsequent chapter. 780. The closing argument. As a rule the party having the burden of the issue is entitled to the open and close in the final argu- ment. This is not always the case, however. The burden of one of the issues may be upon the plaintiff and another upon the defendant. If there is no evidence, on behalf of the plaintiff, to support the issue resting upon him, and the only question for the court or jury to deter- mine is the issue resting upon the defendant, he is entitled to begin. P Although the burden of one of the issues in such case is upon the plaintiff, and he has been allowed to begin, both in making the open- ing statement and in introducing- the evidence, the burden of proof, in (k) Cox Adv. 338. (o) K. S. 1881, 536. (1) Proffatt's Jury Trial, '210. (p) Zehner v. Kepler, 16 Ind. 290; (m) It. S. 1881, I 533, sub. 2. ante, 777. (n) R. S. 1881,533, sub 3 XIX.] THE TRIAL. 509 the outcome, is upon the defendant, and he should be allowed to open and close in the argument. This can only be done where there is no evidence to support the issue resting upon the plaintiff. Where the court would feel warranted, if there was but the one issue in instructing the jury to find for the de- fendant, he should be allowed to begin. q INSTRUCTIONS. 781. Special instructions. "When the evidence is concluded, and either party desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party or his attorney asking the same, and delivered to the court. " r While the statute requires the court to instruct the jury generally," the failure to instruct upon any given point will not reverse the cause, unless the party desiring such instruction asks for the same specially.' The statute requires that, " where either party asks special instruc- tions, the court shall either give each instruction as requested, or posi- tively refuse to do so; or give the instructions, with a modification, in such manner that it shall distinctly appear what instructions were given in whole or in part, and in like manner those refused, so that either party may except to the instructions as asked for, or as modified, or to the modification."" The instructions must be signed by the party, or his attorney/ and must be prepared and delivered to the court at or before the close of the evidence. w The court can not require, by a rule of court or otherwise, that special instructions shall be delivered to the court before the trial commences, or at any time earlier than that fixed by the express terms of the statute. 1 782. May be modified, but not verbally. The court is not bound either to give or refuse instructions as they are asked. The statute expressly authorizes the court to modify the instructions (q) Post, 789. Co. v. Vancant, 40 Ind. 233; The Terre (r) K. S. 1881, 533. Haute, etc., R. R. Co. v. Graham, '16 (s) Post, 784. Ind. 239; Sutherland r. Hankins, 56 (t) Burgett v. Biirgett, 43 Ind. 78; Ind. 343, 352; Chicago, etc., R. R. Co. Rollins r. The .State, 62 Ind. 46; Sulli- v. Hedges, 195 Ind. 398. van c. The State, 52 Ind. 309. ( w) Newton v. Newton, 12 Ind. 527; (\\\ It S. 1881, 533, sub. 6. Ollam v. Shaw, 27 Ind. 388. (v) The Jeffersonville, etc., R. R. (x) Laselle v. Wells, 17 Ind. 33. 510 THE TEIAL. [CHAP. and give them as madified. y But any changes made therein must be in writing. They can not be given and accompanied by a verbal modi- fication, whether the court has been requested to instruct in writing or not. z The object of the statute is, that the modification shall be so made that the party asking the instruction may be able to make it a part of the record. This object would be entirely defeated by allowing the instruction to be modified verbally. 8 783. When proper instructions asked may be refused. It is not always available error that the court has refused to give a special instruction asked for, although the instruction states the law correctly and is applicable to the issues and the evidence. It was said in an early case: "An instruction asserting a correct legal principle may be rightly refused for any one of at least three reasons : " 1. That it is not pertinent to the particular case as made by the evidence. " 2. That it was not handed up to the judge for his examination at the proper time. " 3. That it was clearly embraced in instructions given." b Where it appears from the record that either of these reasons exists there is no error, and where the record fails to show whether or not they or either of them exist, the court will presume in favor of the action of the lower court. 784. General instructions. It is the duty of the court to in- struct the jury, generally, as to the law governing the case as pre- sented by the issues and the proof. c The duty of the court in this respect is imperative, and no request to instruct is necessary. It may be dispensed with by the consent of the parties, but not otherwise. 01 The extent to which the instruction should go in order to comply (y) K. S. 188i; 533, sub. 6. Ind. 547; Hadley v. Prather, 64 Ind. (z) Lung v. Deal, 16 Ind. 349 ; Pro- 137 ; Pate v. The First National Bank, vines v. Heaston, 67 Ind. 482. 63 Ind. 254; Crandallv. The First Na- (a) Patterson v. The Indianapolis, tional Bank, 61 Ind. 348 ; Steeple v. etc., Plank Koad Co , 56 Ind. 20. Downing, 60 Ind. 478; Everson v. Sel- (b) Fitzgerald v. Jerolaman, 10 Ind. er, 105 Ind. 266. 338 ; Rogers v. Rogerr, 46 Ind. 1 ; The (c) R. S. 1881, ? 533, sub. 5. Ohio and Mississippi R. Co. v. Hem- (d) Welch ;. Watts, 9 Ind. 115; berger, 43 Ind. 462; Abrams r. Smith, Williams v. The State, 10 Ind. 503, 8 Blkf. 95; Hines v. Overacker, 66 612; K rack v. Wolf, 39 Ind. 88; Brad- way v. Waddell, 95 Ind. 170. XIX.] THE TRIAL. 511 with the requirement that they shall be "general" is not determined by the authorities. But the rule is that if the instructions are right as far as they go, although they do not cover the whole case, neither of the parties can complain, as they have the right to ask for further instructions. 6 785. Must be in writing when requested. The court is not required to give the instructions in writing unless one of the parties requests it, f and the request that they shall be in writing must be made iu time to give the court an opportunity to give them due consideration^ The request need not be in writing. It is sufficient if the court is made to understand that the party desires that it shall instruct in writing. 11 The instructions must be numbered and signed by the judge. 1 786. Error to give any part of instructions orally over re- quest that they be in writing. The object of the statute requir- ing the court to instruct in writing when requested is obvious. It is that they may become a part of the record to be taken advantage of in the supreme court, if erroneous. To allow the court to give any part of the instructions orally, or to explain or modify verbally, those given would be a plain violation of the statute. It has been uniformly held that where there is a request that the instructions shall be given in writing it is error to give any part of them orally, or accompany those given with verbal explanations.-* The question whether the oral instructions are right or wrong is not material. The error is in giving them orally when they should be in writing. 11 (e) Bissot v. The State, 53 Ind. 408; w~y, 7 Ind. 187; The Toledo, etc., Schenok v. Sithoff, 75 Ind. 485; Har- Railway Co. v. Daniels, 21 Ind. 256; per v. State, 101 Ind. 109; Louisville, Pate v. Wright, 30 Ind. 476; Suther- etc., Ry. Co. v. Grantham, 104 Ind. 353. land v. Venard, 34 Ind. 390 j Meredith (f ) R. S. 1881, 533, sub. 5. v. Crawford, 34 Ind. 399; Gray v. Sti- (g) McJunldns w. The State, 10 Ind. ver*, 38 Ind. 197; Hardin v. Helton, 140; Newton v. Newton, 12 Ind. 627; 50 Ind. 319; Bosworth v. Barker, 66- Goodwine v. Miller, 32 Ind. 419; Ind. 595; Provines v. Heaston, 67 Ind. Chance v. The Indianapolis, etc., 482; Davis v. Foster, 68 Ind. 238; Gravel Road Co., 32 Ind. 472. McClay v. The State. 1 Ind. 385; Brad- (h) Gray v. Stivers, 38 Ind. 197. way v. Waddell, 95 Ind. 170. (i) R. S. 1881, 1 533, sub. 5. (k) Riley v. Watson, 18 Ind. 291 ; (j) Kenworthy v. Williams, 5 Ind. Meredith v. Crawford, 34 Ind. 399; 375; TownsendV Doe, 8 Blkf. 328; Hardin v. Helton. 50 Ind. 319; Bos- Heaston v. The Cincinnati, etc., R. R. worth v Barker. 65 Ind. 595. As to Co., 16 Ind. 275; Lung v. Deal, 16 what will amount to an " instruction " Ind. 349; Lasselle v. Wells, 17 Ind. within this rule, see Bradway v. Wad- 33; Riley v. Watson, 18 Ind. 291 ; The dell, 95 Ind. 170. Rising Sun, etc,, Turnpike Co. v. Con- 512 THE TRIAL. [CHAP. An examination of the authorities will show that the rule is enforced with great strictness. Notwithstanding this, the number of cases cited prove that it is constantly being violated by the lower courts. In the case of Bosworth v. Baker, supra, the court say: "Under our code it is the undoubted right of a party, if he properly requests it, to have all of the instructions given by the court reduced to writing before they are given, and we have a long line of decisions holding that it is error, for which a judgment will be reversed, to charge the jury orally, either in whole or in part, where a proper request has been made to have the charge put in writing before it is given But it is insisted that the violation of the statute in giving the oral charge complained of in this case was, at most, only a technical viola- tion, for which the judgment ought not to be reversed, as the verdict was fully supported by the evidence. We are, however, not author- ized to hold that a substantial disregard of an imperative statute is, in any event, only a technical error. If we can overlook the relaxation of the statutory requirement above referred to in a comparatively un- important case like this, we might permit a still further relaxation in a more important case, in utter disregard of both the letter and spirit of such statutory requirement. This would be a very unsafe prac- tice to adopt, and would afford a dangerous precedent in judicial pro- ceedings." 1 787. Must be applicable to the issues and the evidence. Instructions upon mere abstract propositions of law should not be given by the court, and are properly refused when asked specially by the parties. The instructions must not only state the law correctly, as an abstract question, but the law must be correctly stated when applied to the pleadings and evidence in the case on trial." But, where an instruction states the law correctly, the cause will not (1) Bosworth v. Barker, 65 Ind. 595. Ind. 480; Herbert v. Drew. 32 Ind. (m) Huntington v. Colinan, 1 Blkf. 364; Musselman v. Pratt. 44 Ind. 126; 348; Sinard v. Patterson, 3 Blkf. 353; Hill v. Newman, 47 Ind. 187; Bissott Musselman v. Pratt, 44 Ind. 126; Sher- v. The State, 53 Ind. 408; Evans v. man v. Holland, 73 Ind. 472; Nicklaus Gallantine, 57 Ind. 367; Black r. DUM- v. Burns, 75 Ind. 93. can, 60 Ind. 522; Terry v. Shivelly, 64 (n) Turpin v. Kemy, 3 Blkf. 210; Ind. 106; McMahan v. Flanders, 64 Rapp v. Grayson, 2 Blkf. 130; Mum- Ind. 334; Moore v. The State, 65 Ind. ford v. Thomas, 10 Ind. 167; Wallace 382; The Howe Machine Co. v. Rebec, 17. Morgan, 23 Ind. 399; Swank v. 66 Ind. 498; Wade v. Guppinger, 60 Nichols, 24 Ind. 199; Hays v. Hynds, Ind. 376. 28 Ind. 531 ; Clem v. The State, 31 XIX.] THE TRIAL. 513 be reversed because of its inapplicability to the evidence unless it may fairly be presumed to have injured the party complaining. In order to show that an instruction is not applicable to the evidence, the record on appeal must set out all of the evidence given in the cause, otherwise, if the instruction would have been correct under any supposable state of the evidence, the supreme court will presume it to have been applicable. p But where the instruction must be wrong, under the issues, upon any supposable state of the evidence, there can be no presumption in its favor, even in the absence of the evidence. q An instruction may be erroneous by reason of ambiguity/ It has been held that, where the evidence was not in the record, the supreme court would presume that an instruction given was applicable to the evidence and had an influence on the verdict. 8 But by later authorities, the rule is well established that the pre- sumption will be such as to uphold the verdict, and if to presume that the instructions are not applicable to the evidence will support the ver- dict, it will be held that no. available error has been committed. 1 788. Must not assume a fact to be true. The rule that all questions of fact must be left to the jury, and that the court must not in the instructions assume a fact to be true, or that it has been proved to be true, or express any opinion as to the sufficiency of the evi- dence, is well established and strictly enforced. 11 (o) Stockton . Stockton, 73 Ind 510. (s) Peyton v. Bowell, 1 Blkf. 244. (p) Rogers r. Lamb, 3 Blkf. 155; (t) Audleur v. Kuffel, 71 Ind. 543; Ruffing v. Tilton, 12 Ind. 259 ; Nev/ton Dyer v. The State, 74 Ind. 594. v. Mewton, 12 Ind. 527; List v. Korte- (u) Hackleman . Moat, 4 Blkf. 164; peter. 26 Ind. 27; Coyner v. Lynde, 10 Conaway v. Shelton, 3 Ind. 334; Ball Ind. 282; Cory v. Silcox, 6 Ind. 39; v. Cox, 7 Ind. 453 ; Reynolds v. Cox, 11 The State t>. Frazier, 28 Ind. 196; The Ind. 262; Terry v. The State, 13 Ind. Columbus, Chicago, etc., R. R. Co. v. 70; Larue v. Russel, 26 Ind. 386; Powell, Adm'r, 40 Ind. 37; Miller r. Keiser r. Yandes, 45 Ind. 174 ; Barki-r Voss, 40 Ind. 307; Keating v. The v. The State, 48 Ind. 163; Doering r. State, 44 Ind. 449; The Aurora Fire The State, 49 Ind. 56; Mathews r. Insurance Co. f. Johnson, 46 Ind. 315; Story, 54 Ind. 417; Broker v. Scoby, Higbee v. Moore, 66 Ind. 263; Dener- 66 Ind. 583; Killian v. Eigenmann, 57 line v. Gable, 73 Ind. 210; Davis v. Ind. 480; Snyder r. The State, 59 Ind. Foster, 68 Ind. 238; Hill v. Newman, 105; Black v. Duncan, 60 Ind. 522; 47 Ind. 187; Stratton v. Kennard, 74 Cunningham v. The State, 65 Ind. Ind. 302; Dunkout v. Eagle Machine 377; Clem v. Tlie State, 31 Ind. 480; "Works, 90 Ind. 423. Moore v. The State, 65 Ind. 382; (q) Murray v. Fry, 6 Ind. 371 ; f Bradley v. The State, 31 Ind. 492; Sa- Newton r. Newton, 12 Ind. 527; Lind- ter v. The State, 56 Ind. 378; Com- ley v. Dempsey, 45 Ind. 246. stock v. Whitworth, 75 Ind. 129; Huff- (r) Black v. Duncan, 60 Ind. 522. man v. Cauble, 86 Ind. 591 ; Finch v. Bergins. 89 Ind. 360. 33 i 514 THE TRIAL. [CHAP. But where the evidence is all one way, and about the fact assumed to be true there is in fact no controversy in the evidence, the error is held to be harmless. And where the fact assumed is necessary to make out the cause of action or defense of the party objecting, he can not be heard to complain.' The testimony given by a party on the trial can not be treated* in the instructions, as an admission of the facts to which he testifies. It must be regarded as evidence in the cause the weight of which must be left to the jury. w The court may, under our practice, sum up the evidence in the cause; but to do so is a dangerous practice, as the instruction must be predicated upon the whole of the evidence. And it is held that if the tendency of the instruction is to restrict the consideration of the jury to isolated facts, to the exclusion of other facts, it is an infringement upon the province of the jury and therefore erroneous. 1 The court must not, in recapitulating the evidence, state what it proves but what it conduces to prove. y It is error for the court to instruct the jury to limit their inquiries to one view of the case when there is any evidence before them tending to sustain different views. 2 789. "When the court may instruct the jury to find for either party. The rule is that where there is any evidence, however slight, tending to prove any fact essential to the maintenance of the case, as to that fact the question as to the sufficiency of the evidence to establish it is for the jury, and applying the same rule to the whole case, if there is any evidence, however slight, to sustain a cause of ac- tion or defense, the question must be left to the jury ; but where there is no evidence to sustain a cause of action or defense the court may, and should instruct the jury to find against the party having the bur- den of the issue.* (v) Morgan v. Wattles, 69 Ind. 260. v. Doan, 23 Ind. 455 ; Hynds v. Hays, (w) -Mathews v. Story, 54 Ind. 417; 25 Ind. 31 ; Steinraetz v. Wingate, 42 Finch v. Bergin, 89 Ind. 360; Lewis v. Ind. 574; The Governor, for the use Christie, 97 Ind. 377. of Newman, v. Shelby, 2 Blkf. 26; (x). Barker*. The State, 48 Ind. 163; Huff t>. Cole, 45 Ind. 300; Nixon v. Shank v. The State, 25 Ind. 207; Saw- Brown, 4 Blkf. 157; The State v. yer v. The State, 35 Ind. 80; McCorcle Banks, 48 Ind. 197 ; Dodge v. G'tylord, v. Simpson, 42 Ind. 453. 53 Ind. 365; Moss v. The Witness (y) Ball v. Cox, 7 Ind. 453; Wood Printing Co., 64 Ind. 125; Beckner v. v. Deutchman, 75 Ind. 148. The Riverside, etc., Turnpike Co., 65 (z) Longnecker v. The State, 22 Ind. 468; Vance v. Vance, 74 Ind. Ind. 247. 370; Hazzard v. The Citizens' State (a) Crookshank v. Kellogg, 8 Blkf. Bank, 72 Ind. 130; AVeis v. The City 256; Haynes v. Thomas, 7 Ind. 38; of Madison, 75 Ind. 241 ; Wabash Ry. Porter v. Millard, 18 Ind. 502; Sering Co. v. Williamson, 104 Ind. 154. XIX.] THE TRIAL. 515 It is held that where the court would sustain a demurrer to the evidence against a party, that it is proper to instruct the jury to find against the party. b 790. Additional instructions may be given where the jury disagrees. " Sec. 541. After the jury have retired for deliberation, if there is a disagreement between them as to any part of the testi- mony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to the parties or their attorneys." c This section provides for the giving of instructions at the request of tfie jury upon any point about which they desire to be informed. The ad- ditional instructions must be given in the presence of the parties, or after they have been notified and given an opportunity to be present/ It has been held that the court may recall the jury and give them additional instructions in the absence of one of the parties. 6 The statute certainly confers no such power upon the court. It is expressly decided in the later case of Jones v. Johnson, that it is error to instruct in the absence of either party unless they have been- noti- fied to appear, but this case was not noticed in the opinion. Where the court has been requested to instruct in writing, additional instructions given under this section should be written and signed by the judge. 791. Instructions must be numbered. The statute requires that the instructions shall be numbered/ The object is that the proper exceptions may be taken and pointed out to the supreme court by the number of the instructions ex- cepted to. g As the instructions must be numbered and excepted to separately, they should be made to present to the jury, as nearly as possible, a single proposition of law, so that each, upon the proper exception, may present a single question. 11 792. Must be settled before the argument when requested. (b) Steinmetz v. Wingate, 42 Ind. (e) Farley v. The State, 57 Ind. 331 ; 574. Hall v. The State, 8 Ind. 439. (c) R. S. 1881, 541. (f) R. S. 1881, 533, subs. 4, 5. (d) Jones, Adm'r, r. Johnson, 61 (g) Coryell v. Stone, 62 Ind. 307. Ind. '257; Smith v. McMillen, 19 Ind. (h) Sherlock v. The First National 391; Blacketer v. House, 67 Ind. 414, Bank of Bloomington, 53 Ind. 73. 417; Fish v. Smith, 12 Ind. 563. 516 THE TRIAL. [CHAP. Either party may " before the commencement of the argument ten- der to the court instructions in writing, properly numbered, to be given to the jury, and require the court to indicate before the argument sucli as will be given by writing opposite each the words ' given,' ' given as modified by the court,' or ' refused.'"' The court may hear argument upon the questions of law presented by the instructions, but the parties can not be heard as a matter of right. It is further provided by the same section of the statute that, " the court may, of its own motion, and shall, upon application of either party, also, before the commencement of the argument, lay before the parties any instructions, properly numbered, which it will give to the jury : Provided, the court may give to the jury such other instructions, Avith those already approved, at the close of the argument, as may be necessary to fully present the law to the jury and secure the ends of justice." Under this section, either party has the right to have all of the in- structions settled before the argument commences, subject to the right of the court to give such additional ones as may be necessary. The section is defective in one respect. It contains uo provision au- thorizing the opposite party to require that instructions asked by his adversary may be settled before the argument. A party may ask special instructions without requiring the court to indicate whether they will be given or refused, thus leaving the opposite party in ignor- ance of the instructions. While the statute does not expressly require that all instructions asked by the parties shall be settled before the ar- gument commences, the court should see that this is done where a re- quest has been made as to any of them. The object of the statute is that the parties may be informed, in making the argument, what the law of the case is as indicated by the court. The statute provides that the instructions to be given may be read to the jury in argument as the law governing the case. Where the law of the case is thus fixed, whether the instructions are right or wrong, the parties must be bound by them throughout the trial, and can not attack them as erroneous in the argument. The statute gives the parties no right to comment upon the instruc- tions, favorably or unfavorably, but they may be read to the jury and the facts applied to the law as contained therein. > 793. When erroneous instructions harmless. It is not (i) R. S. 1881, ? 534. (j) Blizzard v. Applegate, 77 Ind. 576. XIX.] THE TRIAL. 517 'every error in the giving or refusing instructions that will be cause for reversal. There is much uncertainty in the decided cases as to what errors will be available on appeal. This uncertainty will always be found where an error may be held to be harmless or not, according to the judgment of the court in the particular case, without any fixed rule by which the question can be determined. In some of the cases it is held, in general terms, that, in order to reverse a cause on account of the giving of an erroneous instruction, it must appear that the jury was misled thereby. k * Or where, taken as a whole, it does the party complaining no injury or injustice. 1 Or where the verdict is clearly right under the evidence. It is held that, although part of an instruction, or one of a series, may be erroneous, if the whole of the instructions taken together state the law correctly there is no available error." To refuse an instruction applicable to a supposed state of facts is a harmless error where the jury find specially a different state of facts. The instructions should state the law clearly, and if they, or any of them, are so ambiguous as to mislead or confuse the jury, the cause should be re versed. p 794. How erroneous instructions cured. It was held in some of the earlier cases that an error, in giving an erroneous instruc- tion, was cured by a subsequent one stating the law, on the same point, correctly. q But under the later decisions it is not sufficient that a cor- (k) Ellison v. Dove, 8 Blkf. 571; v. The State, 15 Ind. 190; Hubbell v. Vanuxen . Rose, 7 Ind. 222; The Wolf, 15 Ind. 204; Burton v. Calaway, Board of Comm'rs v. Brewington, 74 20 Ind. 469; The Lafayette, etc., R. R. Ind. 7. See also Worley v. Moore, 97 Co. v. Adams, 26 Ind. 76; Evansville, Ind. 15. etc., R. R. Co. v. Barbee, 74 Ind. 169. (1) Wood v. Commons, 3 Ind. 418; (n) Shaw v. Saum, 9 fnd. 517; Rol- Hummel v. Tyner, 70 Ind. 84; Felkner lins v. The State, 62 Ind. 46; Walker v. Scarlet, 29 Ind. 154; The City of v. Heller, 73 Ind. 46; Garfield v. The Greencastle v. Martin, 74 Ind. 449; State, 74 Ind. 60; Brooks v. Allen, 12 Harris v. The State, 30 Ind. 131 ; Wai- Ind. 401, 407 ; Coles v. The State, 76 lace v. Cravens, 34 Ind. 534; Morford Ind. 511; Union Mut. L. Ins. Co. v. v. Wood worth, 7 Ind. 83; Smith v. Buchanan, 100 Ind. 63; Hodges v. The State, 28 Ind. 321 ; Blanchard v. Bales, 102 Ind. 494. Jones, 101 Ind. 542. (o) Beard v. Sloan, 38 Ind. 128. (m) Harris v. Doe, 4 Blkf. 369; Bil- (p) The Toledo, etc., R. W. Co. v. lingsley v. The State Bank of Indiana, Shuckman, 50 Ind. 42. 3 Ind. 375; Corn well v. Emrie, 4 Ind. (q) Gronour v. Daniels, 7 Blkf. 108; 209; Rogers v. Maxwell, 4 Ind. 243; Fairfield v. Browning, 1 Ind. 322; Short v. Scott, 6 Ind. 430; Muirhead Sloo v. Roberts, 7 Ind. 128; Torr v. v. Snyder, 4 Ind. 486; The City of Lo- Torr, 20 Ind. 118; Bask. Prac. 289; gansport v. Dunn, 8 Ind. 378; Brooster Biek. Civil Prac. 288. 518 THE TRIAL. [CHAP. rect instruction . is subsequently given. The erroneous instruction must be expressly withdrawn from the jury/ The rule thus established must be taken in connection with the one that a cause will not be reversed unless the instructions are such as to mislead the jury. 8 It is difficult to see how the court can say that the jury were not misled where the court has given two inconsistent instructions. There is no way by which it can be determined whether the jury 4 were influenced by the one instruction or the t)ther. In tire case of Kirland v. The State, it is said : "In placing a construction upon the instruction complained of, it is our duty to look at all the instructions given on the same subject ; and if the instructions, taken together, present the law correctly, and are not calculated to mislead the jury, we should affirm the judgment. "On the other hand, if the two charges are inconsistent with each other, if they were calculated to confuse and mislead the jury, or if they must have left the jury in doubt or uncertainty as to what was the law as applicable to the facts of the case, then the judgment should be reversed. The above rules have been applied by this court in civil cases. The rule laid down in criminal cases is as follows : 'An er- roneous instruction to the jury in a criminal case can not be corrected by another instruction which states the law accurately, unless the er- roneous instruction be thereby plainly withdrawn from the jury.'" 1 It must be clear that the giving of a correct instruction can not cure the error in giving one that is erroneous, where there is nothing from which the jury can determine which to rely upon as the law.WThe rule that an error in one instruction will not reverse a cause, if, taken as a whole, the instructions state the law correctly, must be confined to cases where the erroneous instruction becomes so by a failure to state the law fully, or some other such defect, which is supplied by other in- structions, whether given before or after it, and not to cases where the two instructions, upon the same point, are inconsistent or contradictory. In such case it can not be said that the instructions, "taken as a whole," state the law correctly. In some of the cases it is said that an instruc- tion may be cured by the evidence. 11 (r) Busk. Prac. 289; Bradley v. The what will amount to such withdrawal. State, 31 Ind. 492, 503; Clem v. The (s) Ante, 793. State, 31 Ind. 480; Clem v. The State, (t) Kirland v. The State, 43 Ind. 42 Ind. 420; Kirland v. The State, 43 146, 154; Bradley v. The State, 31 Ind. Ind. 146; Somers v. Pumphrey, 24 492. Ind. 231, 237; Kinsjen v. The State, 45 (u) Smith v. The State, 28 Ind. 321 ; Ind. 518; The Toledo, etc., R. W. Co. Kollins v. The State, 02 Ind. 46. v. Shuckman, 50 Ind. 42. But see Me- (1) State v. Sutton, 99 Ind. 300. Crory v. Anderson, 103 Ind. 12, as to XIX.] THE TRIAL. 519 This is the rule, stated in a different form, that an erroneous instruc- tion will not reverse a cause where the verdict is clearly right under the evidence.* EXCEPTIONS TO INSTRUCTIONS. 795. When must be taken. Exceptions to instructions given or to the refusal to give those asked, must be taken before the return of the verdict, or objections thereto are waived. 796. How to be taken. "Sec. 535. A party excepting to the giving of instructions or the refusal thereof, shall not be required to file a formal bill of exceptions ; but it shall be sufficient to write on the margin, or at the close of each instruction, ' refused and excepted to,' or ' given and excepted to,' which memorandum shall be signed by the judge and dated. " x The code of 1852 required that the memoranda should be signed by the party taking the exception or his attorney. y This section has been so amended as to require that the exception shall be "signed by the judge and dated." If the statute is not complied with, any error committed in giving or refusing instructions will not be considered by the supreme court on appeal." It was held in an early case that it was necessary that the exception should be signed by the judge. 8 In later cases it was held that the exception must be signed by the party or his attorney, and the case of Cross v. Pearson was expressly overruled. b The present statute, as we have seen, conforms to the case first de- cided, and an exception signed by the party or his attorney would not now be available. The statute provides another means by which the exceptions may be reserved, viz., by a bill of exceptions. (v) Ante, $ 793. Newby v. 'Warren, 24 Ind. 161; Ma- (w) R. S. 1881, ? 626; Roberts v. ghee v. Baker, 15 Ind. 254; Bush v. Higgins, 5 Ind. 542; Jones, Adm'r, v. Durham, 15 Ind. 252; Wade v. Gup- Van Patten, 3 Ind. 107 ; Wood v. Me- pinger, 60 Ind. 376. Clure, 7 Ind.^oo; Vaughn v. Ferrall, (a) Cross v. Pearson, 17 Ind. 612. 57 Ind. 182; Leyner v. The State, 8 ib) Newby v. Warren, 24 Ind. 161; Ind. 490; The State v. Rabourn, 14 Medler v. The State, 26 Ind. 171 ; The Ind. 300. Jeffersonville, etc., R. R. Co. v. Cox, (x) R. S. 1881, \ 535; Overlin v. 37 Ind. 325; Sutherland v. Hankins, Kronen burger, 50 Ind. 365. 56 Ind. 343. (y) R. S. 1876, p. 168, 3'2o. (c) R.S. 1881, 629; Newby v. War- (z) Led ley r. The State. 4 Ind. 580; ren, 24 Ind. 161 ; Burk v. Andis, 98 Ind. 59. 520 THE TRIAL. [CHAP. One or the other of these modes of excepting must be followed to make the objection available.* 1 Under the old code it was held that, where instructions were given by the judge and not signed by him, the only way in which the ex- ception could be taken was by a bill of exceptions. The memoranda of an exception, signed by the party or his attorney, was held to be insufficient. 6 But, under the present statute, where the exception must be signed by the judge, the exception provided for by section 535 should be suf- ficient, whether the instructions are signed or not. The signature should be as binding to the memoranda of the exception as to the bill of exceptions. Where there are several instructions, embracing different proposi- tions, the exceptions should be made to each separately/ 797. The jury may view property or place. The jury may be sent, under the charge of a sworn officer, to view either real or per- sonal property in controversy, or the place Avhere an act is charged to have been committed, or the location of the ground, as in case of the location of public highways. The court may appoint some person to point out the property or the place, and no other person than the offi- cer and the person thus appointed shall be allowed to speak to them upon any matter connected with the trial. 3 The question whether the jury shall be allowed to view the property >r place is a matter within the discretion of the court, and is only au- thorized when, " in the opinion of the court, it is proper. " h In some of the earlier cases it was held that the impression produced upon the minds of the jury by an examination of the premises must be regarded as a part of the evidence.' But these cases have been overruled. The established rule is, that the view authorized by the statute is only for the purpose of aiding the jury to arrive at a better understanding of the evidence given at the trial, and that the impression produced by an inspection of the premises constitutes no part of the evidenced (d) Trogden v. Deckard, 45 Ind. (g) K. S. 1881, \ 538; Erwin o. 572; Emmons v. Newman, 38 Ind. Bulla, 29 Ind. 95. 372; Mendenhall v. Treadway, 44 Ind. (h) Coyner v. Boyd, 55 Ind. 166. 131; Burk v. Andis, 98 Ind. 59; Olds (i) The Evansville, Indianapolis, v. Deckman, 98 Ind. 162; Eslinger v. etc., K. R. Co. v. Cochran, 10 Ind. 560; East, 100 Ind. 434. Hagee v. Grossman, 01 Ind. 223. (e) Dix v. Akers, 30 Ind. 431 ; Etter (j) Jefferson vi lie, Madison, etc., R. v. Armstrong, 46 Ind. 197. R. Co. v. Rowen, 40 Ind. 545; Gagg v. (f) Elliott v. Woodward, 18 Ind. Vettor, 41 Ind. 228, 258; Heady v. 183; Garrigusv. Burnett, 9 Ind. 528; The Vevay, Mt. Sterling, etc., Turn- Sherlock v. The First National Bank of Bloomington, 53 Ind. 73. XIX.] THE TRIAL. 521 798. The jury must be cautioned when allowed to sepa- rate. The statute makes it the duty of the court to admonish the jury that it is their duty " not to converse with each other or suffer themselves to be addressed by any other person on any subject of the trial, and during the trial that it is their duty not to form or express among themselves an opinion thereon until the cause is finally sub- mitted to them." k It is held that the question whether the jury shall be allowed to sep- arate or not is within the discretion of the court. 1 It is the imperative duty of the^court to admonish the jury at each separation, but the objection to their separation without the instruc- tions required by the statute must be made at the time or it is waived. It is too late to except at the next calling of the cause. It will be presumed by the supreme court that the jury have been properly admonished where there is no showing to the contrary in the record." 799. "What papers may be taken to the jury-room. The jury must depend upon their recollection of the evidence as it is given upon the trial in arriving at a verdict. In the case of Cheek v. The State it is said : " The juror is to reg- ister the evidence, as it is given, on the tablets of his memory and not otherwise. Then the faculty of the memory is made, so far as the jury is concerned, the sole depository of all the evidence that may be given, unless a different course be consented to by the parties or the court. The jury should not be allowed to take the evidence with them to their room except in their memory. It can make no difference whether the notes are written by a juror or by some one else. Jurors would be too apt to rely on what might be imperfectly written, and thus make the case turn on a part only of the facts." The case quoted from was one where a juror had taken notes of the evidence during the trial. The rule laid dawn applies equally, how- ever, to a case where the jury are permitted to take a part of the evi- dence to the jury-room. It is proper that the pleadings should be taken by the jury, and the exhibits attached thereto, although they may have been used as evidence in the cause, being part of the pleadings, pike Co., 52 Ind. 117; The Pittsburgh, Eush v. Pedigo, 63 Ind. 479; B. S. Ft. Wayne, etc., R. R. Co. v. Swinney, 1881, ? 539. 59 Ind. 100. (m) Musselman v. Pratt, 44 Ind. (k) R. S. 1881, 540; Crocker v. 126; Crocker v. Hoffman, 48 Ind. 207; Hoffman, 48 iiul. '! '7. Rush v. Pedigo, 63 Ind. 479. (1) Crocker v. Hoffman, 48 Ind. 207 ; (n) Evans v. The State, 7 Ind. 27J. (o) Cheek v. The State, 85 Ind. 492. 522 THE TRIAL. [CHAP. may properly go to the jury-room. p But with this exception uo part of the evidence, or copies of any writings introduced in evidence, can properly be in the possession of the. jury after they retire to deliberate upon their verdict, except by consent of the parties.* 1 The statute of 1843 gave the court the right to determine what papers should be taken from the bar to their room by the jury/ Neither the presf-nt statute nor the code of 1852 contains any such provision. In the case of Nichols v. JThe State, it was claimed by the appellee that the provision contained in the statute of 1843 was continued in force by section 802 of the code of 1852, 8 but the supreme court held otherwise. Section 802 is not a part of the statute of 1881. It was held in an early case that it was not error to permit the jury to take to their room an estimate of counsel as to what was due to the plaintiff.* But this case is against the great weight of authority, and must be regarded as overruled. While the later decided cases in this state are uniform, that it is error to allow the jury to take any of the evidence, in their retirement, it has been held in some of the cases that it must appear that the jury made some use of the evidence that might reason- ably have influenced them in arriving at a verdict." And where the complaining party could not have been injured by the jury having the evidence before them there is no available error." It has been held that while the jury can not be allowed to have the evidence in their room, they may be returned into court and have a part of the evidence read to them. w The wisdom of this rule may well be doubted. If the jury are re- quired to depend upon their memory for a part of the evidence, they should be as to all of it. To allow a part to be read the second time, is calculated to fasten such evidence upon their minds to the exclusion of other facts proved, it may be by parol, and necessarily gives undue prominence to a part of tiie facts. No greater injury would be likely to result from the jurors reading a deposition or other written evidence, than from hearing it read after the close of the trial. (p) Snyder v. Braden, 58 Ind. 143, (r) R. S. 1843, p. 734, 332; Waltz Summers v. Greathouse, 87 Ind. 205 ; v. Robertson, 7 Blkf. 499. Shulse v. McWilliams, 104 Ind. 512. (a) See Bicknell's Civil Prac., p. 291. (q) Chance u.The Indianapolis, etc., (t) Alexander v. Dunn, 5 Ind. 122. G. R. Co., 32 Ind. 472; Eden v. Lin- (u) Berschv. The State, 13 Ind. 434; genfelter, 39 Ind. 19; Lotz v. I>riggs, Ball v. Carley, 3 Ind. 577. 50 Ind. 346; Nichols v. The State, 65 (vi Collins r. Frost, 54 Ind. 242. Ind. 512; Toohy v. Sarvis, 78 Ind. 474. , \O Kch-n r. Lingenfelter, 39 Ind. 19. XIX.] THE TRIAL. 52.J The rule that excludes the evidence from the jury -room, applies also to the law of the case, whether contained in the instructions of the court or in books. x 800. Polling the jury. At common law, the privilege of polling the jury could not be claimed as a right, but might be permitted in the discretion of the court. Under the statute in this state the right is expressly given, and to refuse it is error. y The examination of each juror must be confined to the simple in- quiry, " Is this your verdict ? " z The object, of polling the jury is to ascertain whether the verdict re- turned by the foreman is concurred in by the others, and it is expressly provided by the statute that "if any juror dissent from the verdict they shall again be sent out to deliberate." Whether the juror, when inquired of, agrees to or dissents from the verdict, the grounds upon which he does so can not be inquired about. The question whether the verdict shall stand, or the jury be returned to deliberate farther, must depend upon the single question and the answer thereto. 8 801. When the jury may be discharged. "Sec. 542. The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring the discharge, or by con- sent of both parties, or after they have been kept together until it sat- isfactorily appears that there is no probability of their agreeing. " b It was held in an early case that, where a jury had been impaneled and allowed to separate until the next day and one of the jurors failed to appear, it was not error to discharge the jury and impanel another. The adjournment of the court where the jury has a cause under de- liberation has the effect to discharge the jury. d The discharge of a jury, although erroneous, does not discontinue the cause. It stands upon the docket for trial, and a second jury may be impaneled and the trial proceeded with. 6 The statute provides that the cause may be tried again immediately or at a future time, as the court may direct/ (x) Smith v. M. Burch, 36 Ind. 529; McKeal v. (v) Wheat . Catterlin, 23 Ind. 85; Freeman, 25 Ind. 151. Tardy v. Howard, 12 Ind. 404; Wolf (r) Anderson v. Lane, 32 Ind. 102. v. Blue, 5 Blkf. 153. (s) Wilcoxon v. Annesly, 23 Ind. (w) Wilcoxon v. Annesly, 23 Ind. 285. 285. (t) Stephens v. Scott, 13 Ind. 515; (x) Dowell v. Richardson, 10 Ind. Clark v. Heck, 17 Ind. 281. 673. (u) Crouch v. Martin, 3 Blkf. 256; 552 VERDICT. [CHAP. it is properly described in the complaint, it is sufficient to refer to it as " said property," or the property described in the com plaint. y The question whether the property shall be returned or not is for the court, and need not be found in the verdict. z If the verdict is for the plaintiff, and the property is not returned, he is entitled to judgment for its value whether the complaint asks for damages or not. The verdict must find the value of the property, but it is no objection that the value found is greater than that alleged in the complaint. The complaint may be amended, or will be deemed amended on appeal, to correspond with the verdict, and the plaintiff is entitled to recover the amount found by the jury." Where the verdict is for the defendant, and the property has been taken on the writ, the value of the property must be found to entitle him to a judgment for its return or for its value. b But he may recover the value of the property in a suit upon the bond without such a finding. The objection to the judgment that the verdict does not find the value of the property must be raised in the court below, and can not be first presented on appeal.* 1 So of objections to the verdict. It was held in an early case that damages could not be assessed b< - yond the amount claimed in the complaint. 6 But later cases are tlio other way/(1) 847. In highway cases. In an action for the location or vaca- tion of a highway, where the finding is for the petitioners, a verdict in , their favor, generally, is insufficient. Before the county commission- ers certain jurisdictional facts must be found. On appeal to the cir- cuit court the cause is tried de now, and the verdict of the jury must find the same facts to support a judgment for the petitioners.* 5 In the case cited the verdict was: " We, the jury, find that the pro- posed highway in question would be of public utility." The court say of this verdict : " The verdict of the jury on the trial of this cause was defective in this, that it was expressly limited by its terms to a finding upon one single question of fact and none other. On the trial de now of a highway case in the circuit court there should be (y) Anderson i). Lane, 32 Ind. 102. (d) Watts v. Green, 30 Ind. 98. (z) Plant v. Crane, 7 Ind. 486. (e) O'Neal v. Wade. 3 Ind. 410. (a) The Singer Mfg. Co. v. Doxey, (f) W ebb v. Thompson, 23 Ind. 428; 65 Ind. 65. post, \ 848. (b) Chissom v. Lamcool, 9 Ind. 530; (g) Scraper v. Pipes, 59 Ind. 158, Conner . Comstock, 17 Ind. 90. 165. (c) Whitney v. Lehmer, 26 Ind. 503. (1) See Vol. 3, p. 480. XX.] VERDICT. . 553 a general finding for the petitioners by the court or jury trying the cause of all the facts which the board of commissioners would have been required to find in such a case ; otherwise, the verdict is ill and a venire de novo must issue." It has been held that the board of commissioners must find, as jur- isdictional facts : 1 . That the requisite notice of the petition had been given ; 2. That the petition was signed by twelve freeholders of the county ; 3. That six of the petitioners were of the immediate neigh- borhood of the proposed highway. 11 According to the case of Scraper v. Pipes the jury must, in their verdict, find all of these facts, as well as that the road is of public utility.' Where the finding is for the remonstrators, if the remonstrance is on the ground that the road is not of public utility, a general finding in their favor is sufficient. If the remonstrance is for damages, a ver- dict for the remonstrator, fixing his damages, has been held suf- ficient. j 848. Verdict for more than amount asked for in the com- plaint. The fact that the amount found by the verdict is more than is claimed in the complaint, does not vitiate it. k If the amount found is not more than is actually due, the complaint may be amended to correspond with the verdict, and will be deemed to lie so amended on appeal. 1 It was held otherwise in some of the earlier cases." 1 But these cases are clearly overruled by the later decisions. Where there is a default, the judgment can not exceed the amount demanded, but this is regulated by an express provision of the statute." If the verdict is for more than is due the plaintiff, it may be set aside on the ground that the amount of the finding is too large. But the plaintiff may avoid the error by entering a remittitur for the excess. p (h) Little v. Thompson, 24 Ind. 146. (1) Webb v. Thompson, 23 Ind. 426. (i) Scraper v. Pipes, 59 Ind. 158, (m) Roberts v. Muir, 7 Ind. 544; 165; Housworth v. BloomhufF, 54 Ind. O'Neal v. Wade, 3 Ind. 410; May v. 487. The State Bank, 9 Ind. 233. ( j) The Board of Comm'rs of Grant (n) R. S. 1881, ? 385; ante, 425. Co. v. Small, 61 Ind. 318. (o) R. S. 1881, 559. (k) Webb v. Thompson, 23 Ind. (p) Murray v. Phillips, 59 Ind. 56; 4'J8; Robinson v. Jamison. 33 Ind. 122; Lambert r. Blackman, 1 Blkf. 59; Col- Raymond v. Williams, 24 Ind. 416; dren v. Miller, 1 Blkf. 296; Browning Barnes i;. Smith. 34 I::J. 516; Baker v. Meritt, 61 Ind. 425; Hilliard's New v. Simmons, 40 Ind. 442; ante, 425. Trials. 2 ed., p. 152. ? 3'2. 554 VERDICT. [CHAP. The remittitur may be entered in the supreme court to avoid a re- versal. q A remittitur may be entered where the finding before a justice of the peace exceeds the amount of which the justice has jurisdiction as well as the amount claimed. The excess of the verdict, over the amount for which the justice may render judgment, is void and not the entire verdict. r SPECIAL VERDICT. 849. When may be returned. The jury may return either a general or special verdict, at their option, unless instructed as to the form of their verdict by the court. 3 And the court may order a special verdict without being requested.' But either party may request that a special verdict be returned upon any or all of the issues, and the court must so instruct the jury, and they must find a special verdict." 850. May be returned with general verdict. Ordinarily, where a special verdict is found, a general verdict should not be re- turned. Buj; there may be a special verdict as to a part of the issues only, in which case a general verdict is necessary/ Where the jury have not been instructed as to the form of their ver- dict, it is not error for them to return both a general and special ver- dict,' Where both a general and special verdict are returned, the special verdict controls where they are conflicting, as in case of special find- ings of facts in answer to interrogatories. * 851. What must find. It is the office of a special verdict to find the facts, y not conclusions of law. 7 - Nor the evidence. 8 (q) Frazer v. Boss, 66 Ind. 1 ; Hum- (w) Hershman v. Hershman, 63 Ind. phrey c. Merit, 51 Ind. 197. 451,458; Webster v. Bebbinger, 70 (r) The Louisville, etc., R. W. Co. Ind. 9. But see Todd v. Fenton, 66 v. Breckenridge, 64 Ind. 113. Ind. 25. (s) Ruffing v. Tilton, 12 Ind. 259; (x) Hershman v. Hershman, 63 Ind. The Michigan Southern, etc., R. R. Co. 451. v. Bivens, 13 Ind. 263; Bird v. Lanius, (y) Hopkins v. Stanley, 43 Ind. 55o : 7 Ind. 615. Locke v. The Merchants' National (t) Weatherbya. Higgins, 6 Ind. 73. Bank, 66 Ind. 353; Graham v. Th; (u) The Michigan Southern R. R. State, 66 Ind. 386 ; Ex parte Walls, 73 Co. v. Bivens, 13 Ind. 263; Bird v. La- Ind. 95; Pittsburgh, etc., li. U. Co. v. nitis, 7 Ind. 615. Spencer, 98 Ind. 186. (v) Graham v. The State, 66 Ind. (z) Keller v. Boatman, 49 Ind. 104. ".86, 395. (a) Locke v. The Merchants' Bank, 66 Ind. 353; Gordon v. Stockdale, 89 Ind. 240. XX.] VKKDICT. 555 The verdict must find all of. the facts necessary to the recovery of the party in whose favor judgment is rendered. 1 ' There is a long line of decisions in this state holding that there must be a finding upon all of the issues, or the special verdict will be insuf- ficient. It was held, also, that the verdict must find all of the facts affirming or negativing every issue formed by the pleadings, and the court could not supply an omission to find any such facts". d In Hpraworth v. Bloomhuff it is said : " Our code of practice defines a special verdict thus: 'A special verdict is that by which the jury find the facts only, leaving the judgment thereon to the court.' In Bird v. Lanius, 7 Ind. 615, it was held by this court that by a special verdict: was meant, ' not an isolated fact tending to support or defeat an issue, but it is an issue joined between the parties, arising upon a cause of action in the complaint and a denial of it in the answer, or upori a dt> fense set up in the answer put in issue by the reply.' A special vrr- dict must contain a finding by the jury pro or con, as to every material fact in issue necessary to constitute the plaintiff's cause of action or the defendant's defense. And the reason for this requirement js that the court can neither supply an omitted necessary fact nor can it ren- der judgment upon an imperfect verdict. If the special verdict should not contain a finding by the jury, either for or against each material fact in issue necessary to constitute the cause of action or cause of defense, then the proper remedy of the aggrieved party is a motion to set aside the verdict and for a venire de now." These cases, and the rule thus established, have been materially modified by the later decisions. 6 In Graham v. The State the law is thus stated: " There is no differ- ence between a special verdict and a special finding by the court, ex- cept that the special verdict finds the facts only, and the court after- ward pronounces or rather applies the law to the facts found and ren- ders judgment accordingly; while in a special finding the court states (b) Goldsby v. Robertson, .1 Blkf. (d) Bird v. Lanius. 7 Ind. 6K>; 247 ; Housworth v. Bloomhuff, 54 Ind. Housworth v. Bloomhuff, 54 Ind. 487. 487, 497; Stropes v. The Board of 497 ; Locke v. The Merchants' National Comm'rs, etc., 72 Ind. 42; Hilliard's Bank, 66 Ind. 353. New Trials, 2 ed., pp. 130, 131. (e) Graham v. The State, 66 Ind. (c) Bird v. Lanius, 7 Ind. 615; 386; Martin v. Cauble, 72 Ind. 67; Schmitz v. Lauferty, 29 Ind. 400; De- Stropes v. The Board, etc., 72 Ind. 42; hority v. Nelson, 56 Ind. 414; Gulick Ex parte Walls, 73 Ind. 95; Jones v. v. Connelly, 42 Ind. 134; Housworth Baird, 76 Ind. 164; Stumph . Bauer, v. Bloomhuff, 54 Ind. 487; Whitworth 76 Ind. 157. r. Ballard, 56 Ind 279; Busk. Prac., 207 220. 556 VERDICT. [CHAP. the conclusions of law upon the facts found, so that, the parties can except to the conclusions. Neither a special verdict nor a special find- ing can do more, in relation to facts, than to find or state them. But what facts are to be thus found or stated? Clearly those that are proved upon the trial, and none other. "When the special verdict has found the facts proved on the trial it has performed its entire office ; and when the special finding has stated the facts proved on the trial it has performed its entire office so far as the facts are concerned. Of course the facts may be proved by cir- cumstances or otherwise, as in any other mode of trial. " But suppose there are issues in the cause concerning which no evi- dence is given. There is nothing in such case in relation to those issues for the court or jury, in finding specially, to pass upon. No fact in relation to them has been proved, and, hence, no fact in relation to them is to be found or stated, because, as we have seen, the special verdict or finding is confined to the facts proved. "In the case supposed, it would seem that in rendering judgment the issues, concerning which no facts are found, should be regarded as not proved by the party on whom the burden of the issue or issues lies. This leads us to inquire what was meant by the provision, that the court may direct the jury to give a special verdict upon all or any of the issues. " This provision, taken in connection with the others, seems to us to have meant that the court might direct the jury to find the facts specially, which might be proved in relation to some of the issues, and to find a general verdict upon the others. Such practice might, in some peculiar cases, subserve a good purpose, but we have never known it to be resorted to. " The provision clearly does not mean that the jury are to pass upon any of the issues, in finding a special verdict, in any other way than to find the facts proved. And if the facts proved and found do not de- termine some o/the issues, those issues must be regarded as not proved by the party having the burden of proof resting upon him. "Applying the statute, with this construction, to the case before us, the special finding was not objectionable, because it did not pass upon all the issues.'' It will be noticed that this case, though not referring to them, is clearly in conflict with the earlier decisions. According to the rule here stated it is not a valid objection to a special verdict that it does not find upon all of the issues, nor that there is an omission to fi)id a given fact. When the special finding is silent upon any question of fact it is not a defect in the verdict. The court VERDICT. 557 must construe the verdict against the party having the burden of the issue, as to that fact, that the same is not proved. If, therefore, the fact must be proved by the plaintiff to entitle him to recover, the judgment must be against him. If there was proof of the fact the verdict, though not defective in form, may be set aside upon a motion for a new trial, on the statutory ground that the verdict is contrary to la\v. f If there is a finding of any fact, the question whether the finding is sustained by the evidence is grdUnd for a new trial. 852. Draft may be prepared by the parties. The proper preparation of a special verdict, in many cases, requires considerable skill, and a jury would be unable to prepare it in the proper form. It is held, however, that a form of verdict may be drawn by the par- ties, each stating the facts as they believe they have been established by the evidence. These drafts may properly be submitted to the jury, leaving them to return either that they may agree upon, with any changes that they may find necessary to conform the facts found to the proof. 8 It isjield in the Pittsburg, etc., R. R. Co. v. Ruby, that the court must pass upon the sufficiency of the verdict, if any such question should be raised, and, therefore, the verdict could not properly be pre- pared by the judge. A reasonable opportunity should be given counsel for each of the parties to prepare a draft of the verdict, and after this is done if either party fails to do so he can not complain that but one draft was sub- mitted to the jury, and that the one drawn by his adversary. h (l) INTERROGATORTIES. 853. Must be submitted at the request of either party. In all cases, when requested by either party, the court must instruct the jury "if they render a general verdict to find specially upon par- ticular questions of fact to be stated in writing." ' This section makes it imperative upon the court to require a finding upon particular questions of fact when requested at the proper time. (2) (f) Exparte Walls, 73 Ind. 95, 110; (h) The Pittsburgh, etc., R. R. Co. ante, 810. Post, 916; Johnson v. v. Ruby, 38 Ind. 294. Putnam, 95 Ind. 57. (1) See further as to what special (g) The Pittsburgh, Ft. Wayne, verdict should contain, Vol. 3, p. 431. etc., R. R. Co. v. Ruby, 38 Ind. 294; (i) R. S. 1881, 546. Busk. Prac. 208; Hopkins v. Stanley, (2)' Vol. 3, p. 431. 43 Ind. 553, 558. 558 VERDICT. [CHAP. But the court may submit interrogatories to the jury without such re- quest. J 854. "When request to submit must be made. A party de- siring the submission of interrogatories to the jury must make the request and submit the interrogatories to the court, before the argument com- mences, or they may properly be refused as coming too late. k 855. Form. The finding of particular questions of fact, provided for in the statute, differs materially from a special verdict. 0) As we have seen, it is the office of a special verdict to find all of the material facts proved. 1 A finding of particular questions of fact may be as to an isolated fact, or the interrogatories may be so formed as to cover all of the facts proved. To elicit a special finding, under this clause of the statute, interroga- tories must be submitted, leaving theory to determine the answers. The interrogatories may be leading." The better practice, and the one most frequently adopted, is to put them in leading form, so that the answers thereto may be yes or no, though this is not absolutely necessary, nor can it be done in all cases. They should be so framed that each interrogatory will call for a find- ing of one single fact, and should not in any case be double. But an interrogatory that is in the alternative, requiring the jury to answer whether one or the other of two antagonistic facts exists, is not double. Thus, an interrogatory: "Did the defendants authorize Tinkler to sign said memorandum for them by his own name, or did he sign it at his own instance?" the answer being : "At his own instance," was held not to be double and to have been properly answered. p This is placed upon the ground that an affirmative answer to one of the alternative propositions was, at the same time, a negative answer to the other ; therefore, the question called for but one answer and was not double. (j) Killian v. Eigenmann, 57 Ind. (1) Ante, 851. 480; Paine v. The Lake Erie, etc., R. (m) Manning r. Gasharie, 27 Ind. R. Co., 31 Ind. 283; The Toledo, etc., 399; Todd v. Fenton, 06 Ind. 25. R. W. Co. v. Hammond, 33 Ind. 379 ; (n) Rice v. Rice, 6 Ind. 100. Busk. Prac. 215. (o) Rosser v. Barnes, 16 Ind. 502, (k) Ollam v. Shaw, 27 Ind. 388; Chapin v. Clapp, 29 Ind. 614. Malady r. McEnary, 30 Ind. 273; Mil- Cp) Noakes v. Morey, 30 Ind. 103, ler r. Voss, 40 Ind. 307; Glasgow v. 108. Hobbs, 52 Ind. 239. (1) Vol. 3, p. 431. XX.] VERDICT. 559 An interrogatory that inquires, generally, whether any of the facts r.lleged in the complaint are not true, should not be submitted to the jury. q Nor is it proper to make the interrogatory so broad as to cover the whole issue to be determined by the jury, as this renders the answer equivalent to a general verdict/ The parties have a right to call the attention of the jury to a single fact, or a number of isolated facts, material to the issue, and require a Hading thereon. To require the interrogatory to be so broad as to cover one entire cause of action or defense, embraced within the issues, \\ould be to deprive the parties of the right given them by statute. An interrogatory, in asking whether one fact exists or not, must not assume the existence of another material fact. 8 856. Evidence ; conclusions of law. While the statute clearly contemplates a finding upon less than the whole matter put in issue, it is not proper to inquire for, nor can the jury properly set out the evidence. They must find the facts established by the evidence. 1 Aujnterrogatory that asks for a conclusion of law is improper." The construction of written instruments, where there is no ambiguity, is for the court, and an interrogatory asking for such construction should not be submitted to the jury. v 857. Must be as to a material fact. The interrogatories must call for a finding upon facts material and pertinent to the issues." Objection to the interrogatories must be made when they are sub- mitted, or the objection is waived. 1 858. Must be fully and fairly answered. When interroga- tories are submitted to the jury they must be definitely and completely answered. y The jury can not answer that they do not know.* If there is any evidence as to the fact inquired about they must determine the question (q) Morse v. Morse, 25 Ind. 156. (w) Donohue v. Dyer, 23 Ind. 521 ; ir) Todd v. Fenton, 66 Ind. 25; Manning v. Gasharie, 27 Ind. 399; Manning v. Gasharie, 27 Ind. 399. Schenck r. Butsch, 32 Ind. 338. (s) The Toledo and Wabash K. W. (x) Brooker v. Weber, 41 Ind. 426; Co. v. Goddard, 25 Ind. 185. The O. & M. R. W. Co. v. Dickerson, (t) Manning v. Gasharie, 29 Ind. 59 Ind. 317. 399; Busk. Prac. 213. (y) Rosser v. Barnes, 16 Ind. 502; - (a) The Toledo and Wabash R. W. Hopkins r. Stanley, 43 Ind. 553; Pe- Co. v. Goddard, 25 Ind. 185. ters v. Lane, 55 Ind. 391. But see The' (v) Symmes v. Brown, 13 Ind. 318; Mutual Benefit, etc., Co. r. Cannon, 48 Comer v. Hines, 49 Ind. 482; Busk. Ind. 264. Prac. 213. (z) Buntin v. Rose, 16 Ind. 209. 560 VERDICT. [CHAP. according to the preponderance of the evidence, as in case of a general verdict, or disagree. If there is no evidence on the point they may answer that there is no evidence.* If the evidence is evenly balanced the finding should be against the party having the burden of the issue. b If the answers are not full and responsive the objection must l>e made before the jury is discharged, and it is the duty of the court to require that they be properly answered. 6 859. Request for waives special verdict. The statute evi- dently does not contemplate that there shall be a special verdict and special findings of facts in the same action. It is held that, where a. party requests that the jury be required to return special findings in answer to interrogatories, he thereby waives the special verdict, al- though it may have been requested.* 1 860. Each answer must be signed. Each answer is regarded as a separate and distinct finding, and should be signed by the fore- man. 6 But the objection that they are not signed must be made before the jury is discharged or it is waived/ 861. When answers control general verdict. Where the special findings of fact and the general verdict are so inconsistent that both can not stand, the former must control, otherwise the general ver- dict must stand. 8 (a) Maxwell v. Uoyne, 36 Ind. 120; 128; Morse v. Morse, 25 Ind. 15(5; De Kowell t\ Klein, 44 Ind. 290; Guliek lawter v. The Sand Creek Ditching v. Connelly, 42 Ind. 134. Co., 26 Ind. 407 : Manning v. Gasharie, (b) Guliek v. Connelly, 42 Tnd. 134. 27 Ind. 399; The Bellefontaine R. W. (c) Noble v. Enos, 19 Ind. 72; Co.?;. Hunter, 33 Ind. 335; Snydcr v. Noakest-. Morey, 30 Ind. 103; McEl- Robinson, 35 Ind. 311; Campbell v. fresh v. Guard, 32 Ind. 408; Sage v. Dutch, 36 Ind. 504; Wisler v. Holder- Brown, 34 Ind. 464; Reeves r. Plough, man, 40 Ind. 106; Ridgeway r. Pear- 41 Ind. 204; Bowman v. Phillips, 47 inger, 42 Ind. 157; Skillen r. Jones. 44 Ind. 341; Peters v. Lane, 55 Ind. 391. Ind. 136; Adams v. Cosby. 48 Ind. (d) Nobler. Enos, 19 Ind. 72. 153; Nebeker v. Cutsinger, 48 Ind. (e) Sage v. Brown, 34 Ind. 464. 436; Wood ford v. Begue. 53 Ind. 176; (f) Vater v. Lewis, 36 Ind. 288. Thompson v. The Cincinnati, etc., R. (g) R. S. 1881, 547; The Indian- R. Co., 54 Ind. 197; Graham v. Castor, apol is and St. Louis R. R. Co. v. Stout, 55 Ind. 559.; Graham r. Graham. 55 53 Ind. 143; The Board of Comm'rs, Ind. 23; Eckleman v. Miller. 57 Ind. ftc., v. Kromer, 8 Ind. 446; Wright v. 88; Alexander r. The Northwestern Hughes, 13 Ind. 109; Cromwell v. Christian University, 57 Ind. 46tf : Lowe, 14 Tnd. 234; Horn v. Eberhart, Mason r. Moulden, 58 Ind. 1 ; Miller 17 Ind. !18; Amidc.n ?;. Gaff, 24 Ind. /-. Wade, 58 Ind. 91 ; Murray r. Phil XX.] VERDICT. 561 The degree of inconsistency that must exist in order that judgment should be rendered on the special findings, notwithstanding the general verdict, is illustrated by the numerous cases cited in the foot note. The general rule is variously stated. Thus, it is said : " A special finding overrides the general verdict only when both can not stand; and t'.iis antagonism must be apparent, upon the face of the record, before the court can be successfully called upon to direct judgment in favor of the party against whom a general verdict has been rendered by the jury upon their oath. "It is the duty of the supreme court to indulge every reasonable presumption in favor of the correctness of the general verdict which is presumed to have been rendered upon the substantial merits of the matters in controversy. It is also the duty of this court to reconcile, if possible, the general verdict with the answers to the interrogatories ; for it is settled that if a special verdict can, by any hypothesis, be reconciled with the general verdict the latter will control, and the court will not render judgment against the party in whose favor the general verdict is rendered. " The word ' inconsistent,' as used in section 337 of the code, does not mean that the special findings are inconsistent with each other, nor does it mean that some of the special findings are inconsistent with the general verdict, but it means either that taken as a whole, the special findings are inconsistent with the general verdict, or that the facts found in one or more of the answers to interrogatories exclude every conclusion that will authorize a recovery for the plaintiff." 11 Again: "The special findings override the general verdict only when both can not stand, and this antagonism must be apparent upon the face of the record, beyond the possibility of being removed by any evidence legitimately admissible under the issues, before the court can be successfully called upon to direct judgment in favor of the party against whom a general verdict has been rendered by a jury upon their oath."' Where the evidence is not in the record on appeal, and evidence lips, 59 Ind.56; Smith ?>. Zent, 59 Ind. Richardson, 72 Ind. 323; Higgins v. 362; Bowles v. Stout, 60 Ind.267; The Kendall, 73 Ind. 522; McClure /. Mo Detroit, etc., R. R. Co. r. Barton, 61 Clure, 74 Ind. 108; The Lake Shore, Ind. 293; Brem merman v. Jennings, etc., R. R. Co. v. McCormick, 74 Ind. 61 Ind. 334; Ohm v. Yung, 63 Ind. 440; Vol. 3, pp. 431, 447. 432; The Grand Rapids, etc., R. R. Co. (h) The Indianapolis and St. Louis v. Boyd, 65 Ind. 526; Frazer ?-. Boss, R. R. Co. v. Stout, 53 Ind. 143, 147; 66 Ind. 1 ; Rout v. Woods, 67 Ind. 319 ; Husk. Prac. 216, and cases cited. Griffin r. Reis, 68 Ind. 9; Medsker v. (i) Amidon v. Gaff, 24 Ind. 128. 36 562 VERDICT. [CHAP. might properly have been given under the issues that would have reconciled the inconsistency between the general verdict and the special findings, the court will presume that such evidence was given in the court below. j And where the answers to interrogatories are so uncertain that their meaning can not be definitely ascertained, they will not control the general verdict. k Every reasonable presumption must be indulged in favor of the gen- eral verdict. 1 - 862. Can only be returned with the general verdict. Where the jury fail to agree upon a general verdict, answers to inter- rogatories can not be returned, nor can interrogatories be properly sub- mitted except upon the condition that a general verdict is found. To make the special findings effective for any purpose, they must be returned in connection with a general verdict. And where the interrogatories are asked, absolutely, and not upon the condition that the jury find a general verdict, the court may prop- erly refuse to submit them to the jury." 863. Can. not be withdrawn from the jury. When the court has submitted proper interrogatories to the jury, the parties have the right to have them answered, and they can not be withdrawn without the consent of the parties. In the case cited the action of the court in withdrawing the inter- rogatories was attempted to be justified on the ground that they were not asked on the condition that the jury agreed upon a general ver- dict. It was held that while this would have been sufficient ground for refusing to submit them, in the first instance, it could not justify their subsequent withdrawal. 864. Motion for judgment on. Where it is believed that the special findings are inconsistent with the general verdict, the question is properly presented by a motion for judgment on the special find- ings notwithstanding the general verdict. The question can not be ( j) Graham v. Graham, 55 Ind. 23. Butsch, 32 Ind.338 ; Eudaly v. Eudaly, (k) Comer v. Himes, 49 Ind. 482; 37 Ind. 440; Todd v. Fenton, 66 Ind. Carpenter v. Galloway, 73 Ind. 418. 25. (I) McCallister v. Mount, 73 Ind. (n) Schenck v. Butsch, 32 Ind. 338; 559. Killian v. Eigenmann, 57 Ind. 480. (m) Bird v. Lanius, 7 Ind. 615; (o) The Otter Creek Block Coal Co. Morse v. Morse, 25 Ind. 156; Manning v. Raney, 34 Ind. 329. v. Gasharie, 27 Ind. 339; Schenck r. XX.] VERDICT. 563 raised in the supreme court for the first time, but must be raised by the proper motion in the court below.? Such a motion does not waive a motion for a new trial. q The subject of judgments on the special findings is more fully con- sidered in the chapter on judgments. 865. When treated as a special verdict. It is well settled by authority that the special findings and the general verdict must be returned together. But it has also been held, in some cases, that where the interrogatories are so framed, and the answers thereto so made as to amount to a finding upon all of the facts, they may be re- ceived alone and treated as a special verdict. 8 But in order that they may be so construed it is held that they must cover and embrace all the matters in issue between the parties. 1 (p) Tritlipo v. Lacy, 55 Ind. 287; K. Co., 31 Ind. 283; The Toledo, Wa- Horn v. Eberhart, 17 Ind. 118; Stock- bash, etc., K. K. Co. v. Hammond, 33 ton v. Stockton, 40 Ind. 225 ; Brannon Ind. 379; Pea v. Pea, 35 Ind. 387; v. May, 42 Ind. 92 ; Busk. Prao. 217. Crassen v. Swoveland, 22 Ind. 427. (q) Brannon v. May, 42 Ind. 92. (t) Kealing v. Voss, 61 Ind. 466; (s) Paine v. The Lake Erie, etc., R. Pea v. Pea, 35 Ind. 387. 564 NEW TRIAL VENIRE DE NOVO. [CHAT. CHAPTER XXI. NEW TRIAL VENIRE DE NOVO. SECTION. NEW TRIAL 866. The statute. THE MOTION. 867. Must be in writing. 868. When must be filed. 869. Must point out the errors com- plained of with reasonable cer- tainty. 870. Truth of causes must be shown by bill of exceptions. 871. When must be verified. 872. Joint motion. 873. In attachment proceedings. 874. Is part of the record. 875. Successive motions. 876. Must be granted as to the whole case. CAUSES FOR NEW TRIAL. 1. Irregularity in the proceedings of the court, jury, or prevailing party, or any order of court or abuse of discretion by which the party was prevented from having a fair trial. 877. What embraced in this specifica- tion. 878. Irregularity in the proceedings of the court. 879. Continuance. 880. Change of venue. 881. Depositions. 882. Interrogatories to party. 883. Dismissal of appeal. 884. Orders of court; abuse of discre- tion. b8G. Irregularity of the jury or pro- vailing party. SECTION. 2. Misconduct of the jury or prevailing party. 886. Of the jury must be gross and injurious. 887. Drinking intoxicating liquors. 888. Communicating with other per- sons. 889. Presence in the jury room of of- ficer in charge. 890. Separation of the jury. 891. Viewing the premises. 892. Taking notes of the evidence. 893. Taking out papers. 894. Furnishing law to the jury. 895. Compromise verdict. 896. Communications between court and jury. 897. Misconduct of prevailing party. 3. Accident or surprise which ordinary prudence could not have guarded against. 898. How assigned. 899. At the evidence of the adverse party. 900. At the testimony of his own wit- nesses. 901. Other grounds of surprise. 902. Diligence must have been used to avoid surprise. 903. Must have caused injury. 4. Excessive damages. 904. Applies to actions for tort. 905. Can not be assigned as error. 906. Damages must be grossly exces- sive. 9J7. Omission to assess nominal dam- 908. Remittitur. XXI.] NEW TRIAL VENIRE DE NOVO. 565 5. Error in the assessment of the, amount of recovery, whether too iarge or too small. 909. What included within this specifi- cation. 910. When cause will be reversed on ground that assessment is too large. 911. Finding for more than amount claimed in complaint. 912. Where there is a demurrer to the evidence. 913. Amount of recovery too small. 6. That the verdict is not sustained by sufficient evidence or is contrary to law. 914. Not sustained by sufficient evi- dence. 915. Rule in the supreme court. 916. Verdict contrary to law. 917. All of the evidence must be in the record. 7. N ewly-discoveved evidence. 918. What must be shown under this specification. 919. That the evidence has been dis- covered since the trial. 920. Diligence used to procure the evi- dence. 921. Evidence must be material. 922. Cumulative evidence. 923. Impeaching evidence. 924. Evidence must probably produce a different result. 925. Affidavits of party and witness necessary. 926. Evidence must be in the record. 8. Error of *law occurring at the trial. '.rJ7. Generally. 928. Causes enumerated. 929. Admission or exclusion of evi- dence. 9oO. Givmg or refusing to give in- structions. 931. Question of law reserved. ERRORS NOT GROUND FOR NEW TRIAL. 932. Enumerated. HOW MOTION FOR NEW TRIAL WAIVED. 933. By moving in arrest of judgment. 934. By failing to except at the time. 935. Not waived by motion for a ve- ntre de novo. 938. Nor by motion for judgment on special findings. ERROR IN GRANTING OR OVERRULING THK MOTION. 937. New trial grunted. 938. New trial refused. 939. Exception must be taken at the time. 940. When appeal taken from ruling on the motion. 941. Default; can be no new trial. 942. Effect of consent of parties. TERMS OF GRANTING NEW TRIAL. 943. Costs. 944. Can not be granted on condition. 945. Costs can not be recovered back. 946. Effect of granting new trial. AFFIDAV/TS IN SUPPORT OF THE MO- TION. 947. Proof how made. 948. Witness compelled to make affi- davit. 949. Juror's affidavit. 950. Determined by the weight of the evidence. NUMBER OF NEW TRIALS. 951. Unlimited. COMPLAINT FOR NEW TRIAL. 952. The statute. 953. When must be filed. 954. The pleadings. 955. The complaint. 956. The parties. 957. Demurrer. 958. The trial. !'">!. Appeal. 566 NEW TRIAL VENIRE DE NOVO. [CHAP. NEW TRIAL AS OF RIGHT. 969. Default; can be no new trial as of 960. The statute. right. 961. In what causes may be granted. 962. The motion. VENIRE DE NOVO. 963. Undertaking must be given and 970. Defective verdict. new trial granted within one 971. Failure to find the whole issue, year. 972. Finding the evidence or conclu- 964. The undertaking. sions of law. 965. The notice. 973. Imperfect answers to special in- 966. The evidence. terrogatories. 967. Appeal. 974. Motion must be made before 968. Effect of order granting. judgment. 975. Appeal. NEW TRIAL. 866. The statute. " Sec. 559. A new trial may be granted in the following cases : " First. Irregularity in the proceedings of the court, jury, or pre- vailing party, or any order of court, or abuse of discretion by which the party was prevented from having a fair trial. " Second. Misconduct of the jury or prevailing party. " Third. Accident or surprise which ordinary prudence could not have guarded against. " Fourth. Excessive damages. " Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon contract or for the in- jury or detention of property. " Sixth. That the verdict or decision is not sustained by sufficient evidence or is contrary to law. " Seventh. Newly discovered evidence material for the party apply- ing, which he could not, with reasonable diligence, have discovered and produced at the trial. " Eighth. Error of law occurring at the trial and excepted to by the party making the application. And the court, in granting new trials, may allow the same at the costs of the party applying therefor, or on the costs abiding the event of the suit, or a portion of the costs, as the justice and equity of the case may require, taking into considera- tion the causes which may make such new trial necessary." 8 THE MOTION. 867. Must be in writing. "The application must be by mo- tion upon written cause filed at the time of making the motion." b (a) R. S. 1881, \ 559; Vol. 3, p. 432, Erwin, 6 Ind. 494; The Madison, etc., 434. R. R.-CO. v. The Trustees of Franklin (b) R. S. 1881, ? 562; Addleman v. XXI.] NEW TRIAL VENIRE DE NOVU. 567 It has been held that a motion for a new trial, as of right, need not be in writing. The statute seems to apply to the reasons for a new trial and not to the motion, but the reasons must constitute the most material part of the motion ; and although some of the decided cases speak of the rea- sons as distinguished therefrom, as the statute requires the motion to be made and the reasons to be filed at the same time, and as the mo- tion amounts to nothing without the reasons they should both be in writing and treated as constituting the motion for a new trial. (1) Where the cause has been tried by the court, and a finding ren- dered, the court can not, upon an oral motion for a new trial, set aside the finding and render a finding for the opposite party. d 868. When must be filed. The code of 1852 required that the written motion for a new trial should be filed during the term at which the verdict or decision was rendered. 6 Under this statute it was held, in^, number of cases, that the mo- tion must be filed during the term, and could not be made afterwards except for causes discovered after the term. f The present statute provides that " if the verdict or decision be ren- dered on the last day of the session of any court, or on the last day of any term, then on the first day of the next term of such court, whether general, special, or adjourned," the motion may be filed.- This amendment only.extends the time where the verdict or decision is rendered on the last day of the session of court, if the court ad- journs before the time fixed by law, or on the last day of the term, and in such case the motion must be made on the first day of the next term. By the express terms of the statute, if a special or adjourned term is held before the regular term, the motion must be filed at such Tp., 8 Ind. 528; Nutter v. The Stat$ (d) Wright v. Hawkins, 36 Ind. 264. 9 Ind. 178; Howes v. Halliday, 10 Ind. (e) 2 R. S. 1876, p. Ibo, \ 354; Vol. 839; Kirby v. Cannon, 9 Ind 371; 3, p. 434. Thompson v. Shaefer, 9 Ind. 500: La- (f) McNiel v. Farneman, 37 Ind. gro, etc., Plank R. Co. v. Eristou, 10 203; Greenup v. Crooks, 50 Ind. 410; Ind. 342; The New Albany, etc., R. R. Hinkle v. Margerum, 50 Ind. 240; Co. v. Collins, 12 Ind. 626; Stevens v. Krutz v. Craig, 53 Ind. 661 ; Ricketts Nevitt, 15 Ind. 224; Hubbell v. Skiles, v. Dorrell, 55 Ind. 470; Myers v. Jnr- 16 Ind. 138; Zimmerman v. March- boe, 56 Ind. 57; Davis v. Binford, 58 land, 23 Ind. 474; Thayer r. Hedges, Ind. 457; The Pennsylvania Co. v. 23 Ind. 141; Whaley v. Gleason, 40 Sedwick, 59 Ind. 336; Coggswell v. Ind 405; Krutz v. Craig, 53 Ind. 561; The State, 65 Ind. 1 ; Smith v. Little, Harris v. Boone. 69 Ind. 300. 67 Ind. 549; Hannah v. Dorrell, 73 (c! Zimmerman v. Marchland, 23 Ind. 465 ; Higgins v. Kendall, 73 Ind. I,,d. 474. 622; Cutsinger v. Nebeker, 58 Ind. 401. (1) Vol. 3, p. 432. (g) R. S. 1881, 561. 568 NEW TRIAL VENIRE DE NOVO. [CHAP. term. But the statute must be understood to apply to a term of court held by the judge before whom the cause was tried and in which the cause is set down for hearing, and not to a term fixed for the trial of certain causes, of which it is not one. The court has no power to extend the time for filing the motion beyond the time fixed by the statute. 11 But the opposite party must object to the extension at the time, or the requirement of the statute is waived. R is too late to object when the motion is filed at the next term.' Where reasons are filed during the term, other and different reasons can not be filed after the term.J Time may be extended by consent. 15 The statute applies to the term at which the verdict or decision is rendered, and not to the time of the trial ; therefore, if the cause is tried at one term, and decided by the court at a subsequent one, the motion may be filed at any time during the latter term. 1 The word "decision," as useA in the statute, applies to the finding of facts in a cause tried by the court. The motion maybe made after judgment." It was otherwise prior to the code. 869. Must point out the errors complained of with reason- able certainty. The motion for a new trial must state the causes therefor with reasonable certain ty. p It is not sufficient to use the general terms of the statute. The causes must be specifically set forth.' 1 Thus a cause assigned : " Because of error of law occurring at the trial, and excepted to at the time," is too general/ So of the reason : " Surprise at the trial, which ordinary prudence could not have guarded against." 9 (h) Krutz v. Craig, 53 Ind. 561, 570. (p) Robinson . Hadley, 14 Ind. 417 ; (i) Wilson v. Vance, 55 Ind. 394; Shirk v. Cartright, '29 Ind. 406 ; Marsh McOsker v. Barrel!, 55 Ind. 425; My- v. Terrell, 63 Ind. 363. ers v. Jarboe, 56 Ind. 57; The Penn- (q) Ham v. Carroll, 17 Ind. 442. sylvania Co. v. Sedwick, 59 Ind. 336; (r) Barnard v. Graham, 14 Ind. 322; Northcuttr. Buckles, 60 Ind. 577. Oiler v. Bodkey, 17 Ind. 600; Medler (j) Myers v. Jarboe, 56 Ind. 57. a. Hiatt, 14 Ind. 405; The Pittsburgh, (k) Smith v. Little, 67 Ind. 549. etc., R. R. Co. v. Hennigh, 39 Ind. 509; (1) Kendell v. Judah. 63 Ind. 291. Snodgrass v. Hunt, 15 Ind. 274; Phelps (m) Wilson r. Vance, 55 Ind. 394. v. Tilton, 17 Ind. 423; Ward v. Pat- (n) Hinkle v. Margerum, 50 Ind. rick, 41 Ind. 438; Scoville v. Chap- 240; Smith v. Thornburg, 7 Ind. 144; man, 17 Ind. 470; Dutch v. Anderson, Beals v. Beals, 20 Ind. 163 ; Willis v. 75 Ind. 35. The State, 62 Ind. 391. (s) Snodgrass v. Hunt, 15 Ind. 274- (o) Smith v. Thornburg. 7 Ind. 144. XXI.] NEW TRIAL VENIRE DE NOVO. 569 Or " irregularity in the proceedings of the court." j Or "error of law occurring at the trial." k Instructions. As applied to the instructions, the assignment, " be- cause the court erred in charging the law of the case," is too general. 1 So "that the court misdirected the jury.'"" Or " the court, erred in refusing to give charges moved by the defendant."" The particular instruction complained of must be pointed out. But it has been held that it is a sufficient reason that " error of law occurred at the trial of the cause, which was excepted to at the time by the party, in this : that the court, in giving instructions to the jury, gave instructions contrary to law," where all of the instructions have been excepted to. p So of the cause, " the court erred in instructions given to the jury" is sufficiently specific where all of the instructions have been excepted to. q This is upon the ground that the exceptions and the reason assigned, taken together, go to all of the instructions. By these later cases, those holding the general assignment of a cause for a new trial insufficient, as applied to the instructions, are in effect overruled/ But to make the assignment sufficient under this rule it must go to the whole of the instructions, and will be held bad if applied to only a part, without designating what part." And when the rule is thus construed there are other and later cases that are clearly in conflict with the decisions holding such a general cause for a new trial to be sufficient. 1 But in a still later case the old rule is again reiterated, coupled with the statement that the cases above cited holding the general assigment of the causes to be sufficient have since been followed." (j) Phelps v. Tilton, 17 Ind. 423; (r) Bartholomew v. Langsdale, 35 Scoville v. Chapman, 17 Ind. 470. Ind. 278. (k) Ferguson r. Ramsey. 41 Ind. (s) Streigbt v. Bell, 37 Ind. 550; 511; ilarley v. Noblett, 42 Ind. 85; Waggoner v. Listen; 37 Ind. 357; Suth- Fisher v. Hamilton, 48 Ind. 239; Ma- erland i- Venard, 34 Ind. 390. son v. Moulden, 58 Ind. 1. (t) Waggoner v. Listen, 37 Ind. 357; (1) Robinson v. Hadley, 14 Ind. 417 ; Wright v. Potter, 38 Ind. 61 ; Alley v. Home v. Williams, 23 Ind. 37. Gavin, 40 Ind. 446; Reeves v. Plough, (m) Brooker v. Weber, 41 Ind. 426. 41 Ind. 204; Marley v. Noblett, 42 Stone r. The State, 42 Ind. 418. Ind. 85; Holding v. Smith, 4'J Ind. (n) Home v. Williams, 23 Ind. 37. 536; Rogers v. Rogers, 46 Ind. 1 ; Ad- (o) Home r. Williams, 23 Ind. 37. ams v. Holmes, 48 Ind. 299; Grant v. (p) Dawson v. Coffmnn, 28 Ind. 220. Westfall. 57 Ind. 121 ; Vaughn v. Fer- (q) Bartholomew v. Langsdale, 35 rail, 57 Ind. 182; Nofsinger r. Rey- Ind. 278. nolds, 52 Ind. 218. (u) Irwin v. Smith, 72 Ind. 482, 487. 570 NEW TRIAL VENIRE DE NOVO. [CHAP. Evidence. Where the error relied upon is the admission or exclusion of evidence, the particular evidence must be designated in the motion. v The evidence need not be set out in full. It is sufficient if it is so described as to show with reasonable certainty that part of the evi- dence complained of. w Thus it has been held that, where the cause was " for refusing to allow the defendants to introduce evidence of the good character of their witnesses," it was sufficiently definite. x But it is not sufficient to designate it as the evidence of a particular witness.-" The cause assigned must be sufficient to direct the attention of the lower court to the particular evidence complained of. z Where the cause assigned was that a note differing from the one de- scribed in the mortgage sued on was admitted in evidence, it was held the motion should have pointed out the difference that existed.' 1 Verdict It has been held sufficient, as a cause for a new trial, " that the verdict is contrary to the evidence," it being equivalent to the stat- utory cause, " that the verdict is not sustained by sufficient evidence." 1 ' So, to use the language of the statute, that " the verdict is contrary to law." c Irregularity of jury or party. In assigning the reasons under this clause of the statute it is not sufficient to use the general language of the statute. The particular act constituting the irregularity com- plained of must be pointed out. d Bill of exceptions can not aid the uncertainty. While the bill of excep- tions is necessary to make the motion for a new trial effective, it can not supply an omission therein. Therefore, a motion for a new trial that does not contain the statutory requirements can not be aided by a bill of exceptions not yet filed. 6 (v) Cheek r. The State, 37 Ind. 533 ; (a) Dorsch v. Rosenthall, 39 Ind. 209. "W right v. Potter, 38 Ind. 61 ; Dorsch (b) Collins r. Maghee, 32 Ind. 268. v. Rosenthall, 39 Ind. 209; Eden v. (c) Marsh v. Terrell, C3 Ind. 363. Lingenfelter, 39 Ind. 19; Cass ?;. Krim- (d) Marley v. Nob.lett, 42 Ind. 85; bill, 39 Ind. 357 ; Call v. Byram, 39 Musselman v. Musselman, 44 Ind. 106. Ind. 499; Mook'.ar v. Lewis, 40 Ind. 1 ; (e) Sim v. Hurst, 44 Ind. 579 ; Shore De Armond v. Glasscock, 40 Ind. 418; v. Taylor, 46 Ind. 345; Murphy v. Hull v. Balfe, 41 Ind. 221; Bayless v. Wilson, 46 Ind. 537; Scott v. The In- Glenn, 72 Ind. 5. dianapolis Wagon Works, 48 Ind. 75; (w) Ball v. Balfe, 41 Ind. 221. Long r. Z. ok. 48 Ind. 12-5; Noble v. (x) Clarke v. B..nd, 29 Ind. 555. Dickson, 48 Ind. 171 ; White v. Kice, (y) The Jeffersonville, etc., R. R. 48 Ind. 225; Cooper r. Ham, 49 Ind. Co. v. Riley, 39 Ind. 568. 393; Cobble v. Tomlinson, 50 Ind. 550 (/.} Sherlock r. Ailing, 44 Ind. 184; Meyer v. Bohlfing, 44 Ind. 238. XXI.] NEW TRIAL VENIRE DE NOVO. 571 Assignment of error. Xor can aii assignment of error enlarge or aid the uncertainty of the motion/ 870. Truth of causes must be shown by bill of exceptions. A motion for a new trial can only be made effective by a bill of ex- ceptions showing that the causes assigned therein are true. The recitals in the motion will not be taken to be true in the absence of a bill of exceptions. 8 But where the question arises upon the instructions or other matter which may be made part of the record by order of the court, or ex- ceptions thereto without a bill of exceptions, it is sufficient if it appear from the record that such order was made or exception taken, as re- quired by statute. 11 871. "When must be verified. As a rule, a motion fora new trial need not be verified or supported by affidavit. But when the second, third, or seventh causes are assigned, they must be supported by affidavit showing their truth.' It is held that a motion for a new trial under the first specification of the statute need not be supported by affidavit. 872. Joint motion. Where the same questions arise on the mo- tion for a new trial as to all of the parties making the application, the motion may properly be joint. But if there is any difference in their rights that will be likely to affect the question of the granting of a new trial, each should file a separate motion. If a jwint motion is nm< li- no question is raised as to the right of one of the parties to a new trial, (f ) Dobson v. The Duck Pond State, 65 Ind. 51; McDonald v. The Ditching Association, 42 Ind. 312; State, 74 Ind. 214; Burnett v. Overtoil, Douglass v. Blankenship, 50 Ind. 160. 67 Ind. 557; Bates v. The State, 72 (c) The Indianapolis Mfg. Co. v. Ind. 434; Paulman v. Claycomh, 75 First National Bank of Indianapolis, Ind. 64. 33 Ind. 302; McSheeley v. Bentley, 31 (h) Emmons v. Newman, 38 Ind. Ind. 235; Emmons v. Newman, 38 372; R. S. 1881, g 535, 629, 650; ante, Ind. 372; Blackwell v. Acton, 38 Ind. 796; Bates v. The State, 72 Ind. 434; 425; Taulby v. The State, 38 Ind. 437; McDonald v. The State, 74 Ind. 214; Ski'.len v. Skillen, 41 Ind. 122; Wiler Hughes v. The State, 65 Ind. 39; Stott v. Manly, 51 Ind. 169; Bishop v. Welch, v. Smith, 70 Ind. 298. 54 Ind. 527; Vawter v. Gilliland, 55 (i) R. S. 1881, 562; Urban n. Ind. 278; Stearns v. Irwin, 62 Ind. Kraigg, 21 Ind. 174 ; Temple v. Lasher, 658; Hughes r. The State, 65 Ind. 39; 39 Ind. 203; Bouslog v. Garrett, 39 Johnson v. The State, 65 Ind. 269; Ind. 338. Berlin v. Oglesbee. 65 Ind. 308; Hyatt (m) Jones v. Johnson, 61 Ind. 257; v. Clements, 65 Ind. 12 ; Fisher v. The R. S. 1881, 559; ante, \ 866. 572 NEW TRIAL VENIRE I>E NOVO. [dlAP. therefore, if the motion is not well taken as to either of the parties, it must be overruled as to all, although one, if the application, were made for him separately, would be entitled to a new trial." But it has been held that, where there is a joint verdict against several defendants, and the cause assigned is that the verdict is not sustained by sufficient evidence, the motion is sufficiently specific, and the verdict should be set aside as to all of the parties where the evi- dence does not sustain it as to a part of them. The case was one where the parties were charged in the complaint as joint contractors, and the evidence established a several liability as to two of the defendants, and that the other defendant was not liable at all. It was held that, under this state of the pleadings, the joint verdict could not be upheld as to any of the defendants. 873. In attachment proceedings. In attachment proceedings the manner of applying for a new trial may be different from that of other cases. Issues may be formed upon the questions of fact presented by the affidavit in attachment as well as upon the complaint. p There may also be a motion for a new trial, both as to the cause of action set up in the complaint and as to the questions presented by the affidavit in attachment. It is not necessary, however, that there should be two motions for a new trial. The motion may be as to the issues formed in the attachment proceedings and those formed in the original action, and the motion may be granted as to the attachment pro- ceeding and denied as to the original cause of action. q While one motion- is sufficient, it must so assign the reasons for a new trial as to make them applicable to both branches of the case. When, the motion is thus framed it will be treated as several. Thus it has been held that a motion, " as well upon the attachment proceed- ings as of those formed upon the note and account, and all of them," should be treated as a several motion upon the issues on the complaint and affidavit/ 874. Is part of the record. A motion for a new trial, and the causes assigned therefor, become a part of the record, when filed, without a bill of exceptions. 8 (n) The First Nat. Bk. of Cambridge Excelsior Fork Co. v. Lukens, 38 Ind. City v. Colter. 61 Ind. 153; Kendell v. 438. Judah, 63 Ind. 291. (q) Parsons v. Stockbridge, 42 Ind. (o) Gmham v. Henderson, 35 Ind. 121. 195. (r) Parsons v. Stockbridge, 42 Ind. (p) Foster r. Dryfus, 16 Ind. 158; 121. Maple v Burnside, 22 Ind. 139; The (s) Martin i\ Harrison, 50 Ind. 270; XXI.] NEW TRIAL VENIRE DE NOVO. 573 They may be brought into the record by a bill of exceptions, but it is unnecessary. 1 The rule that the motion and reasons are part of the record does not extend to affidavits in support of the reasons assigned. They can only be made part of the record by a bill of exceptions or an order of court." 875. Successive motions. A second motion for a new trial for the same cause should not be allowed. But it has been held that a second or even a third motion may be entertained in the discretion of the court where it is shown that due diligence was used, and the cause or causes assigned therefor were not discovered until after the original application was determined." 876. Must be granted as to the whole case. A new trial must, in ordinary cases, be granted as to the whole case or overruled." It has been shown that in attachment proceedings the motion may be sustained as to the issues on the affidavit for attachment, and over- ruled as to the main action. x CAUSES FOR NEW TRIAL. / 1. IRREGULARITY IN THE PROCEEDINGS OF THE COURT, JURY, OR PRE- VAILING PARTY, OR ANY ORDER OF COURT, OR ABUSE OF DIS- CRETION, BY WHICH THE PARTY WAS PREVENTED FROM HAVING A FAIR TRIAL. 877. What embraced in this cause. The first clause of the statute embraces several distinct causes for a new trial : First. Irregularity in the proceedings of the court. Second. Irregularity of the jury. Third. Irregularity of the prevailing party. Fourth. Any order of court, or abuse of discretion, by which a party was prevented from having a fair trial. Whether the error complained of falls within one or the other of Moore v. The State, 65 Ind. 213; (v) White v. Perkins, 16 Ind. 358; Hunter v. Hatfieid, 68 Ind. 416. Harris v. Rupel, 14 Ind. 209; Harring- (t) Hunter v. Hatfieid, 68 Ind. 416. ton v. State, 76 Ind. 112. (u) Martin v. Harrison, 50 Ind. 270; (w) Peed v. Brenneman, 72 Indv Fryberger v. Perkins, 66 Ind. 19; 288; Morris v. The State, 1 Blkf. :J7; Heath r. West, 68 Ind. 548; Lewis r. Ex parte Hradley, 48 Ind. 548; Veatch Ewing. 70 Ind. 282 ; Stott v. Smith, 70 v. The State, 60 Ind. 291. Ind. 208; McDaniel v. Mattingly, 72 (x) Ante, ? 873; Parsons r. St>ck- Ind. 349; Burke v. The State, 72 Ind. bridge, 42 Ind. 121. 392; \V".-<1 r. Crane, 75 Ind. 207. 574 NEW TRIAL VENIRE DE XOVO. [CHAP. these causes, it must be shown that the irregularity was such as to pre- vent the party from having a fair trial. y It is not sufficient in assigning any of the causes for a new trial, under this specification, to use the language of the statute. The par- ticular act constituting the irregularity complained of must be specifi- cally set forth. 2 The causes arising under this specification will be considered separately. 878. Irregularity in the proceedings of the court. This cause for a new trial has been so construed as to apply to errors com- mitted before the cause has reached a trial. It extends also to mere irregularities occurring at the trial. As, for example, rulings upon applications for a continuance, for a change of venue, motions to sup- press depositions, dismissal of appeals, and the like. Errors committed during the pendency of the trial fall under the eighth specification, " error of law occurring at the trial." 879. Continuance. Action taken by the court on an application for a continuance is cause for a new trial, and falls within the specifica- tion under consideration.* It will be seen by the authorities cited, that the failure to move for a new trial, on the ground of error in granting or refusing a continu- ance, waives such error. It is not sufficient to assign the ruling as error in the supreme court. There must be a motion for a new trial and a bill of exceptions, show- ing the motion for a continuance, the affidavit in support of the mo- tion, and the ruling of the court thereon, to present the question. 6 A ruling upon an application for a continuance may, in some cases, fall within the eighth specification of the statute ; for example, where an amendment is permitted on the trial, and a continuance is asked for on that ground. The question whether the cause falls within one or the other of the specifications is of no practical importance, as the action of the court may properly be assigned as error of the court in granting, or refusing to grant a continuance, without specifying whether it is error of law (y) Telford v. Wilson, 7-1 Ind. 555; McCoy, 53 Ind. 63; Westerfield v. Musselman v. Musselman, 44 Ind. 106; Spencer, 61 Ind. 339; Nichols r. The R. S. 1881, 559; Busk. Prac., p. 224. State, 65 Ind. 512; Hughes v. Ainslee, (z) Buskirk's Prac., p. 224; ante, 28 Ind. 346; Buskirk's Prac, p. 224. 869. . (b) Buskirk's Prac, p. 224; ante, \ (a) Kent v. Lawson, 12 Ind. 675; 870; post, 938; Hughes v. Ainslee, 28- Popham v. Snider, 17 Ind. 149; Carr Ind. 346. v. Eaton, 42 Ind. 385; Arbuckle v. (c) Morgan v. Hyatt, 62 Ind. 560. XXI.] NKW TRIAL VENIRE DE NOVO. 575 occurring at the trial or an irregularity in the proceedings of the court. This is the safer and better practice. 880. Change of venue. Whether a ruling upon a motion for a change of venue should be made a ground for a new trial, or assigned independently as error in the supreme court, has been a matter of some doubt. There can be no good reason why a motion for a change of venue should not be presented in the same way as a motion for a continuance. It may be regarded as settled by the authorities that such ruling is cause for a new trial, and falls under the first specifica- tion of the statute.* 1 But upon an appeal from an order appointing a receiver, it is held that the ruling upon an application for a change from the judge may l)e assigned as error in the supreme court, a new trial not being author- ized in such proceedings." The court say : " The refusal of the court to change the venue is ground for a new trial, and after final judgment can not be considered on appeal unless it is assigned as a reason therefor. This is because the error may thus be corrected, and a failure to ask for a new trial for such cause is a waiver of it. "A party, however, does not waive an objection which he has had no opportunity of making ; and, therefore, this rule does not apply on an appeal from an order appointing a receiver, as the law in such pro- ceeding makes no provision for a new trial. Indeed, strictly speaking, there has been no trial, and therefore can not be a new trial upon such appeal. We think that all questions upon which the validity or regu- larity of such appointment depends are necessarily involved, and may be considered. "If the court have no jurisdsction of the subject of the action, or of the person of the defendant, it would be error to appoint a receiver, and it is wholly immaterial whether it failed to acquire jurisdiction by service of process, or after acquiring it, lost it by the proper applica- tion for a change from the judge. In either case the appointment would be error." This must be true as to other interlocutory orders, where the statute authorizes an appeal and no motion^for a new trial is provided for. Error in reinstating a cause, in which a change of venue has been granted, or refusing sufficient time to perfect the change, must be as- signed as cause for a new trial/ (d) Horton r. Wilson, 25 Ind. 31fi; (e) Shoemaker v. Smith, 74 Ind. 71, Knarr v. Cunaway, 53 Ind. 120; Ber 75. lin v. Oglesbee, 05 Ind. 308; Walker (f ) Wiley v. Barclay, 58 Ind. 577. r Heller. 73 "Ind. 4ll; Krutz v. How- ard, 70 Ind. 174. 576 NEW TRIAL VENIRE DE NOVO. [CHAP. The ground for a new trial must be specifically stated. To use the language of the statute is not sufficient." 881. Depositions. A ruling made upon a motion to suppress or strike out parts of a deposition is cause for a new trial and is within this specification. 11 882. Interrogatories to party. It would seem that the rejection of interrogatories to a party in the action, or other ruling thereon, would fall within the first specification of the statute.' But the supreme court has held otherwise, saying: "Whether this practice is right or wrong we can not review it in this case. The ques- tion is not properly presented. If an error was committed, it was not an 'error of law occurring at the trial.' It is obvious that a new trial would not correct such an error; for after a new trial was granted, the error would stand in the record the same as before. Such a question can be presented only by an assignment of error. " j This same reasoning would apply with equal force if applied to an application for a continuance or for a change of venue. Neither are " errors of law occurring at the trial," but all of them fall within the specification, "irregularity in the 'proceedings of the court by which the party was prevented from having a fair trial." To refuse to re- quire answers to the interrogatories is to deprive a party of evidence that may be used in his favor, and may undoubtedly prevent a fair trial.(l) 883. Dismissal of appeal. Where an appeal from a justice of the peace has been erroneously dismissed in the circuit court, it is an irregularity in the proceedings of the court, and can only be presented by a motion for a new trial. k 884. Orders of court ; abuse of discretion. It is said that, " Orders of the court and abuse of discretion embrace rulings of the court in reference to the inspection or production of papers and records, the refusal to postpone to a day during the term the trial of the cause, the setting of a cause down for trial out of the order in which it stands on the docket, the issuing or refusing to issue a special venire for a jury, the refusal to permit a party to prosecute or defend an action as a poor person, the refusal to require a party to answer interrogatories or give security for costs, or the like." ' (g) Horton v. Wilson, 25 Ind. 316. (i) Buskirk's Prac., p. 225. (h) The Jefferson ville, etc., K. K. (j) Reed v. Spay de, 56 Ind. 394. Co. v. Riley. 39 Ind. 568; Mercer r. (k) Watts v. The Anderson, etc., K. Patterson, 41 Ind. 440; Patterson v. R. Co., 60 Ind. 56. Lord, 47 Ind. 203. (1) Buskirk's Prac., p. 225. (1) But see Cates v. Thayer, 93 Ind. 156, where the rule is still adhered to. XXI.] NEW TRIAL VENIRE DE NOVO. 577 The authorities, including those cited by the learned author, do not support him as to all of the propositions laid down. As to orders of court for the inspection of papers, the error has been considered by the supreme court without question, without a motion for a new trial, upon an assignment that the court erred in making the order for inspection, etc. m We have seen that rulings upon interrogatories to the parties can not be assigned as a cause for a new. trial." As to the other orders and proceedings mentioned by the author, none of the authorities cited hold that they are causes for a new trial under this specification. Notwithstanding the text is not supported by the authorities, the causes named seem to fall within the clause of the statute as stated. An order compelling a party to go to trial of a cause out of its regular order was assigned as an irregularity of the court in compelling such trial. No question appears to have been raised as to its being a proper assignment. But it falls more properly under the latter clause of the specification, as it was clearly an " order of court," which, if it prevented a fair trial, was within this cause. The court may abuse its discretion at almost any stage of the cause, and the statute is broad enough to cover the error, but a case is not likely to arise where the same action of the court would not fall within the cause, " irregularity in the proceedings of the court," or, "error of law occurring at the trial." So, of any " orders of court" that may be complained of. It has been held that to allow improper argument on the trial is within this specification. p So where the court compels a trial without an issue. q To allow an improper amendment of the pleadings on the trial may amount to an abuse of discretion that will be cause for a new trial. 1 885. Irregularity of the jury or prevailing party. It was evidently the intention, in this clause of the statute, to distinguish be- tween mere irregularity of the party or jury and misconduct, which is made a separate cause for a new trial. 8 (m) Silvers v. The Junction R. R. looley r. The State, 58 Ind. 182; Kin- Co., 17 Ind. 143; Spencer v. Woollen, naman v. Kinnaman,71 Ind. 417, Por- 42 Ind. 364. ter v. Choen, GO Ind. 338, Combs v. (n) Reed v. Spayde, 56 Ind. 394; The State, 75 Ind. 215. ante, 882. (q) Hiatt v. Rink. 64 Ind. 590. (o) Bradley c. Bradley, 45 Ind. 67. (r) Yoltz r. Newbert, 17 Ind, 187. (p) Richie i-.The State, 59 Ind. 121; (s) Buskirk's Prac. 226. Huber r. The State, 57 Ind. 341 ; Gil- 37 ' . 578 NEW TRIAL VENIRE DE NOVO. [CHAP. This statutory provision has been found to be unimportant in prac- tice. While cases may arise where an irregularity of the jury or pre- vailing party, not amounting to misconduct, should authorize the granting of a new trial, this is not likely to occur. Whether the act constituting the irregularity is done purposely or not, if it was such as to injure the losing party and prevent a fair trial, it would undoubtedly be properly grounded under the second specifica- tion of the statute. 1 2. MISCONDUCT OF THE JURY 1 OR PREVAILING PARTY. 886. Of the jury must be gross and injurious. There is and should be a marked distinction between misconduct of the jury and misconduct of the prevailing party as to its effect upon the verdict. Where the misconduct is that of the jury, not connected with any act of the prevailing party, a new trial will not be granted unless the jury or some member of the jury has been guilty of gross misbehavior, such as probably affected the rights of the losing party, and prevented a fair trial." But w r here the misconduct of the jury, or any member of the jury, is so connected with the misconduct of the prevailing party, or other person acting in his interest, whether with his knowledge or not, as to indicate a corrupt intent on the part of any juror, or any attempt to tamper with the jury, the courts are quick to set aside the verdict and grant a new trial. 7 887. Drinking intoxicating liquors. The question whether the mere drinking of intoxicating liquors by a juror, at his own expense, without his becoming intoxicated, is such misconduct as will set aside the verdict, has been a matter of much controversy. The decided cases are not uniform in the different states, some holding that it is suf- ficient to show that a juror drank intoxicating liquor, without a showing that it was done with any wrongful intent, or that it was done at the instance or at the expense of *any person interested in the result of the cause, or that the juror's mind was so affected as to render him less capable of understanding and passing upon the questions involved. (t) Post. g 886. 897. Wilds v. Borgan, 57 Ind. 453; McCar- (u) Billiard New Trials, 2d ed. 51, \ thy v. Kitchen, 59 Ind. 500, 506 ; The 7; Stutsman v. Barringer, 16 Ind. City of Indianapolis v. Scott, 72 Ind. 3;;J; Harrison v. Price, 22 Ind. 165; 196; Vol. 3, p. 434. Whelchell v. The State, 23 Ind. 89; (v) Billiard N. T., 2d ed., 202, 6, Flatter v. McDermitt, 25 Ind. 326; and authorities cited. Medler v. The State, 26 Ind. 171; (1) Form of affidavit, Vol. 3, p. 436 XXI.] NEW TRIAL VENIRE DE NOVO. 579 In others the rule enforced is in harmony with that established in other cases of misconduct, and requires that there must be a showing that liquor was taken in such quantities or under such circumstances as to affect the mind of the juror and probably affect the result, to the in- jury of the complaining party." In this state the decided cases are not uniform on this point. In an early case the effect upon the verdict, where it was shown that some of the jurors, in a criminal case, separated from the others with- out leave of the court, and drank whisky but did not become intoxi- cated, was considered. The court say : "Does this constitute of itself sufficient cause for a new trial ? The sum of the modern authorities is that such conduct is exceedingly reprehensible, and ought to be vis- ited with punishment by the court below ; but that where the verdict appears clearly to be right upon the evidence, a new trial will not be granted ; but if the correctness of the verdict be doubtful, then such misconduct will result in a new trial. But in all cases, the misconduct being established, it will impose upon the prosecution the necessity of removing suspicion by showing, as was done in this case, that the offending jurors were not influenced adversely to the defendant, or in any respect rendered less capable of discharging their duties. These doctrines seem to us wise, and, in the present case, the evidence not being in the record we could not, for this cause, unless our statute changes the law, reverse the judgment." 1 It was held that our statute did not fchange the rule. In a later case, where the facts were not materially different, a different rule is laid down: "The jurors had taken upon them an oath well and truly to try the cause, etc., and had been solemnly sent out to deliberate upon questions involving the life of an unfortunate fellow being. If misbehavior, such as that shown by the affidavits, and which is with- out attempted palliation or justification, should not be regarded as suffi- cient to set aside the verdict, it would be a stigma upon the law and a disgrace to the courts. We do not mean to say that the court should enter upon the question as to how far such conduct was or was not ex- cusable or innocuous. . . . But as to the sufficiency of such mis- (w) Proffatt's Jury Trials, $ 398- Burrell r. Phillips, 1 Gall. 360; The 403, and cases cited; Hilliard N. T., 2d People v. Douglass, 4 Cow. 26; Com. ed. 200. and oases cited; Rose r. Smith, v. Roby, 12 Pick. 496 ; Wilson r. Abra- 15 Am. Dec. 331; The People v. Doug- hams, 1 Hill, 207; U. S. v. Gibert, 2 lass, 15 Am. Dec. 332. and note. Sumn. 21; Rome v. The State, 11 (x) Creek r. The State, 24 Ind. 151 ; Humph. 491; Thompson's Case, 8 citing The People r. Ransom, 7 Wend. Gratt. 637. 423; Smith v. Thompson, 1 Cow. 221; 580 NEW TRIAL VENIRE DE NOVO. [CHAP. behavior, unexplained, to set aside the verdict, the authorities are abundant and satisfactory. " y The statute authorizing new trials in criminal cases, under which the two Indiana cases were decided, differs somewhat from the statute reg- ulating the granting of new trials in civil cases. 2 But there is nothing in the two statutory provisions that would ren- der the effect upon the verdict, of drinking intoxicating liquors, differ- ent in criminal and civil cases. Some of the cases cited from other states, holding the mere taking of a drink of liquor to be sufficient cause for granting a new trial were civil cases. ' It seems to be settled therefore, in this state, that the drinking of intoxicating liquors, without any further showing, is sufficient ground for setting aside the verdict and granting a new trial. 888. Communicating -with other persons. *The statute re- quires that the court shall admonish the jury " that it is their duty not to converse with each other, or suffer themselves to be addressed by any other person, on any subject of the trial." a To disobey the instructions given, by conversing together about the case, before it is finally submitted to them, or with any other person, before the verdict is returned into court, is misconduct ; but whether it is cause for a new trial depends upon whether the communication was such as would be calculated to influence the finding of the ver- dict, or, if made by the juror, to show corruption or such feeling on his part as would show bad faith, or prejudice such as would be calcu- lated to affect the rights of the complaining party. In order to warrant a new trial for this cause, it must appear that the communication was such as to prejudice the rights of the losing party. b But where such a communication is made to the jury or a juror as would naturally be calculated to influence the verdict, and especially (y) Davis v. The State. 35 Ind. 496; (z) 2 G. & H., p. 423, 142. citing Ryan v. Harrow, 27 Iowa, 494 ; (a) K. S. 1881, 540; ante, 798. The People v. Douglass, 4 Cow. 26; (b) Barlow v. The State, 2 Blkf. Urant v. Fowler, 7 Cow. 562 ; Wilson 114; Porter v. The State, 2 Ind. 435; v. Abrahams, 1 Hill, 207; The State Harrison v. Price, 22 Ind. 165; Har- r. Bullard, 16 N. H. 139; Jones v. The ding v. Whitney, 40 Ind. 379; Me- State, 13 Texas, 168; Pelham v. Page, Carthy v. Kitchen. 59 Ind. 500; Prof- 6 Ark. 535; Gregg v. McDaniel, 4 fatt's Jury Trials, 390; Hilliard's Harring. (Del.) 367; The Common- New Trials, 2d ed., p. 206. wealth v. Roby, 12 Pick. 496. XXI.] NEW TRIAL VF.XIRE DK XOVO. 5gl where the verdict seems to be founded upon a theory suggested by the communication made, a new trial should be granted. 889. Presence in the jury room of officer in charge. It is the policy of the law that the deliberations of the jury upon their ver- dict shall be in secret, and uninfluenced by the presence of any other person. It has been held, therefore, that the presence of the bailiff in the jury room during their deliberations, although there is no com- munication between him and any member of the jury, is good ground for a new trial. d In the case of The People v. Knapp, the court say, per Cooley, J.: " When the jury retire from the presence of the court, it is in order that they may have an opportunity for private and confidential discus- sion, and the necessity for this is assumed in every case, and the jury sent out as of course, where they do not notify the court that it is not needful. The presence of a single other person in the room is an in- trusion upon this privacy and confidence, and tends to defeat the pur- pose for which they are sent out. ... In their private deliberations, the jury are likely to have occasion to comment with freedom upon the conduct and motives of parties and witnesses, and to express views and be- liefs that they could not express publicly without making bitter enemies. Now the law provides no process for ascertaining whether the officer is indifferent and without prejudice or favor as between the parties, and as it is admitted he has no business in the room, it may turn out that he goes there because of his bias, and in order that he may report to a friendly party what may have been said to his prejudice, or that he may protect him against unfavorable comment through the unwilling- ness of jurors to criticise freely the conduct and motives of one person in the presence of another who is his known friend. Or, the officer may be present with a similar purpose to protect a witness whose testi- mony was likely to be criticised and condemned by some of the jurors. . . . We have said enough already to show that it is not conver- sation alone that is mischievous ; the mere presence of the officer within the hearing of the jury is often quite as much so." This language is quoted approvingly in the case of Rickard v. The State, where the same conclusion is reached. The affidavit charging the presence of the officer in the jury room must be positive and not on information. 6 Counter affidavits, show- ing that no injury could have resulted, may be submitted, and upon such showing the new trial may be denied. (1) (c) Erwin v. Bulla, 29 Ind. 95. (e) McClary v. The State, 75 Ind. 260. (d) Rickard v. The State, 74 Ind. (1) Doles v. The State, 97 Ind. 555; 275; The People v. Knapp, 42 Mich. Fitzgerald v. Goff, 99 Ind. 28; Clayton 267. v. State, 100 Ind. 201. 582 NEW TRIAL VENIRE DE NOVO. [CHAP. 890. Separation of the jury. The right of the jury to separate and the duty of the court in connection therewith have been con- sidered/ The separation of the jury without leave, or in violation of the in- structions of the court, may be ground for a new trial. But the rule is well established that, to authorize a new trial, something more than a mere separation of the jury must be shown. 8 Where the jury, after retiring, notified the officer in charge of them that they had agreed and separated during the night, when they had not agreed upon a verdict, but " agreed to disagree," and in the morning they agreed upon and returned a general and special verdict for the plaintiff, it was held that a motion for a new trial should have been sustained. 11 Where, in addition to the fact of separation, it is shown that any influence has been brought to bear upon any member of the jury cal- culated to influence the verdict, a new trial should be granted. 1 891. Viewing the premises. The jury may, at the discretion of the court, be sent out to view the premises or property in contro- versy. j It is important that the instruction against communicating with each other or third parties should be strictly enforced at such time. If any thing is said in connection with the matter in controversy calculated to influence the verdict, a new trial will be granted. k The jury should do nothing more than view the premises, to en- able them the better to understand the evidence given on the trial ;' but a violation of their duty in this respect, although it amounts to misconduct, will not entitle the losing party to a new trial unless it ap- pears to have been such as to have influenced the finding of the jury." 1 892. Taking notes of the evidence. It is misconduct for a juror to take notes of the evidence during the trial." It has been held that, where a member of a jury is found to be tak- ing notes of the evidence, and, when instructed that it is not proper, de- sists, it is not such misconduct as will vitiate the verdict. (f ) Ante, 798, 840. (k) Erwin v. Bulla, 29 Ind. 95. (g) Harter v. Seaman, 3 Blkf. 27; (1) Heady v. The Vevay, etc., Turn- Drummond v. Leslie, 5 Blkf. 453; pike Co., 52 Ind. 117. Stutsman v. Barringer, 16 Ind. 363; (m) The City of Indianapolis r. Hilliard's New Trials, 2d ed., p. 235, Scott, 72 Ind. 19G, 204. and cases cited; Clayton v. State, 100 (n) Ante, 799. Ind- 201. ( ) Batterson v. The State, 63 Ind (h) Short v. West, 30 Ind. 367. ,, ' (i) Harter v. Seaman, 3 Blkf. 27. (j) Ante, 797. XXI.] NEW TRIAL VENIRE DE XOVO. 583 And where no objection to the juror taking notes is made at the time his misconduct can not be made ground for a new trial. p But where the objection is made and the juror, though, instructed not to do so by the court, persists in taking notes, a new trial should be granted.'' 893. Taking out papers. It is well settled by authority in this state that no part of the evidence in the cause can be taken to the jury room without the consent of the parties, except such exhibits as are made parts of the pleadings and have been used in evidence/ But to entitle the party to a new trial it must appear that some use was made of the evidence to his injury. 8 It should not be required, in this class of cases, that the party mov- ing for a" new trial should show affirmatively that he was injured by the use of the evidence. It should be sufficient to show that evidence favorable to the adverse party was taken to the jury room and used, unless it affirmatively appears that the evidence did not influence the verdict. To require proof that the jury were actually influenced by the evidence is unreasonable. In most cases, to make such a showing would be impossible. If the evidence used is favorable to the party in whose favor, the verdict is returned, and it was read by the jury, noth- ing more should be required in- support of the motion. But where it appears to the satisfaction of the court, that although the evidence was improperly taken to the jury room and read by the jury, it had no influence whatever upon their minds in forming their verdict, a new trial will be denied. 1 It is not safe, however, to depend upon the mere conclusion of a juror that he was not influenced. Although he may state, conscien- tiously, that the evidence had no influence on his mind, his belief that he was not affected thereby should have but little weight. But if it satisfactorily appears that the juror, before reading the evidence, was in favor of returning the verdict that was afterwards returned, this would furnish strong evidence that his verdict did not result from mis- conduct. There should be, in addition to the juror's mere conclusion that the evidence had no influence upon him, some affirmative facts or (p) Cluck v. The State, 40 Ind. 263, v. Briggs, 50 Ind. 346; Nichols v. The 272. State, 65 Ind. 512. (q) Cheek v. The State, 35 Ind. 492. (s) Dersch v. The State, 13 Ind. 434; (r) Ante, 779; Chance v. The In- Collins v. Frost, 54 Ind. 242; Ball v. dianapolis, etc., R. R. Co., 32 Ind. 472; Carley, 3 Ind. 577. Eden v. Lingenfelter, 39 Ind. 19 ; Lotz (t) Proffatt's Jury Trials, 405, and cases cited. 584 , NEW TRIAL VENIRE DE NOVO. [CHAP. circumstances to corroborate his statement, more especially where it ap- pears that the evidence was furnished by the successful party." 894. Furnishing law to the jury. The jury must take the law of the case from the court, and can not be allowed to read the law bearing upon the case from books after their retirement. So it has been held in a criminal case that, where a copy of Bishop's Criminal Law, that had been used in argument on the trial, was furnished the jury in their room and read by them, it was such misconduct as en- titled the defendant to a new trial. v In the case cited, the book was furnished the jury, at their request, by the bailiff. The result must be the same where the law is furnished the jury by the court without the consent of parties. w In this state the rule that the law must come from the court and not from books has been strictly enforced. Thus it has been held that it is error for the court, in its charge to a jury, to read from a law book.* 895. Compromise verdict. The verdict of a jury should be the result of their deliberate judgment after a careful consideration of the evidence. To arrive at the verdict by chance, or by a compromise that results in a verdict against the judgment of any member of the jury, is gross misconduct that must vitiate the verdict. y But it is held that in actions for unliquidated damages the jury may resort to means of arriving at the amount of the verdict that would not be allowed in criminal cases or in civil cases where the damages are liquidated. 2 This same rule has been recognized, in one case, as being applicable to criminal cases. 8 Notwithstanding these cases, the verdict must appear to result from an agreement of all of the jurors, brought about by a fair and honest effort to arrive at the truth ; and where it appears that it was the re- sult of an agreement or understanding previously entered into, by which members of the jury were bound to abide by a verdict arrived at by compromise or chance, the verdict must be set aside. b (u) Buskirk's Prac., p. 228, and au- (y) Ante, 842. thorities cited. (z) Guard v. Risk, 11 Ind. 156; The (v) Newkirk v. The State, 27 Ind. 1. St. Louis, etc., R. W. Co. v. Myrtle, 51 (w) Proffatt's Jury Trials, 404; Ind. 566. Merrill v. Navy, 10 Allen. 416. (a) Batterson v. The State, 63 Ind. (x) Bradley v. The State, 31 Ind. 531, 536. 492, 510. (b) Guard v. Risk, 11 Ind. 156; The XXI.] NEW TRIAL VENIRE DE NOVO. 585 Where the amount sued for is unliquidated some latitude must necessarily be allowed the jury in arriving at the correct amount, and where the verdict is reached by an honest giving way by one juror to the judgment of another, by which they are brought to an agreement as to the amount of their finding the verdict should not be disturbed ; but where the amount is reached by chance, as, for example, where each juror sets down the amount for which he is willing to fincl, with an agreement or understanding that the amounts thus fixed shall be added together anoVdivided by twelve, the result to fix the amount of the verdict to be returned, a new trial must be granted. 896. Communications between court and jury. The law, that the jury shall not communicate with other persons, applies to the judge of the court. No communication should take place be- tween the court and jury, or any member of the jury, about any mat- ter connected with the case except in open court in the presence of the parties. Such communication is misconduct on the part of both, and where it is such as would be reasonably calculated to influence the ver- dict a new trial will be granted. 897. Misconduct of prevailing party. A verdict that is reached by the misconduct of the prevailing party will be set aside and a new trial granted, although there has been no misconduct or in- tentional wrong on the part of the jury. Mr. Buskirk, in his work on Practice, thus classifies misconduct of a party for which a new trial will be granted : " 1. Surreptitiously getting before the jury a paper or documentary evidence. " 2. Approaching a juror on the subject of the trial, or by treating a juror, or by taking a juror home with him, or any trick or artifice resorted to by the party, or by any other person by his procurement, by which a juror is improperly influenced to render a verdict for such party. " 3. All disingenuous attempts to stifle or suppress evidence, or to thwart the proceedings of the court, or to obtain an unconscionable ad- vantage, or .to mislead the court or jury." d St. Louis, etc., R. W. Co. v. Myrtle, 51 (c) Hall r. The State, 8 Ind. 439, Ind. 566; Dunn v. Hall, 8 Blkf. 32; 443; Fish v. Smith, 12 Ind. 563; Smith Hilliard's New Trials, 2d ed., p. 160, v. McMillen, 19 Ind. 391; Parmlee v. T2, and cases cited; Warner v. Kob- Sloan, 37 Ind. 469. inson, 1 Am. Dec. 38, and note; s. c., 1 (d) Buskirk's Prac., p. 229; citing 1 Root, 194; Proffatt's Jury Trials, 406; Graham & Wat. New Trials, 45 to 60, ante, 842. inclusive, and cases there cited. 586 NEW TRIAL VENIRE DE NOVO. [CHAP. Where misconduct of the prevailing party is shown, the court will not stop to inquire what effect it had upon the verdict, but a new trial will be granted. 6 And where the affidavits in support of the motion are sufficient to cast upon the prevailing party suspicion that he lias tampered with a juror, and counter-affidavits do not fully and fairly answer the charge, the motion should be sustained/ , It is not sufficient to charge the misconduct in the general language of the statute ; the specific acts of misconduct mu^t be set forth. 3. ACCIDENT OR SURPRISE, WHICH ORDINARY PRUDENCE COULD NOT HAVE GUARDED AGAINST. 898. How assigned. It is not sufficient, under this specification, to assign the cause for a new trial in the language of the statute. The facts showing the surprise, and that it was not such as ordinary pru- dence could have guarded against, must be set out and be supported by affidavit. h (l) 899. At the evidence of the adverse party. The causes aris- ing under this specification of the statute usually grow out of alleged surprise at the testimony. There is a marked difference between the rights of the plaintiff and defendant, where the evidence claimed to have surprised the party comes from his adversary. It is held that the plaintiff is not entitled to a new trial on account of surprise at any evidence given by the defendant, as he may dismiss his action and thereby avoid a finding against him.' In the case of Cummins v. Walden, the rule is thus stated : "It is a general rule, indeed, that a plaintiff, after a verdict against him, can have no claim to a new trial on account of his having been surprised by any evidence of the defendant. "If the plaintiff find himself unprepared to meet the defendant's evi- dence he always has it in his power to suffer a non-suit, which will leave him at liberty to sue again for the same cause of action. It would be giving the plaintiff too great an advantage to permit him to take the chance of a verdict, and when it is lost to relieve him from the verdict and give him a chance with another jury merely because (e) Huston v. Vail, 51 Ind. 299; (h) Snodgrass v. Hunt, 15 Ind. 274; Hilliard's New Trials, 2d ed., p. 202, 6. Vol. 3, pp. 432-434. (f ) Huston v. Vail, 51 Ind. 299. (i) Atkisson v. Martin, 39 Ind. 242; (g) Gregory v. Schoenell, 55 Ind. Cummins v. Walden, 4 Blkf. 307 ; 101. Hilliard's New Trials, 2d ed., p. 555, (1) Form of affidavit, Vol. 3, p. 437. 59 ; Vol. 3, p. 434. XXI.] NEW TRIAL VEXIKE DE NOVO. 587 the evidence against his claim was stronger on the first trial than he expected it would be."J Neither party has a right to be surprised at the evidence of his adversary that is competent and legitimate under the issues. k But where one party, with a view to influence his adversary, tells him that certain matters in issue will not be controverted, or that certain evidence will not be offered, the opposite party has the right to rely upon such statement, and if such evidence is offered at the trial, and he is not prepared to meet it, and is injured thereby, he will be entitled to a new trial. 1 A new trial will not be granted on the ground of surprise at evidence that was immaterial. 900. At the testimony of his own witnesses. Whether surprise at the testimony of a witness can ever be sufficient cause for a new trial, by the party introducing him, in the absence of any fraud or trick by which the party was misled, has been a matter of consider- able doubt. The authorities on the point, in this state, are not uniform. It was held in some of the earlier cases that such surprise was not ground for a new trial." But in a later case the earlier decisions are reviewed, and a different conclusion reached. It may be regarded, therefore, as the settled rule in this state that a defendant may be granted a new trial on the ground of surprise at the testimony of his own witness, where he is himself without fault and has been injured thereby. This rule can not apply to the plaintiff. If he can avoid an adverse verdict by dismissing his action, when surprised by the testimony of the defendant's witnesses, he may do the same when surprised at the testimony of his own. In the case of Todd v. The State, the court, in speaking of the cases (j) Cummins v. Walden, 4 Blkf. 332; Hill v. Sutton, 47 Ind. 592; Hum- 307, citing Price v. Brown, 1 Strange, phreys v. The State, 75 Ind. 469. 691; Cooke v. Berry, 1 Wilson, 98; (1) Haynes v. The State, 45 Ind. 424. Harrison v. Harrison, 9 Price, 89; (m) Bissot v. The State, 53 Ind. Jackson v. Roe. 7 Johns. 77. 408 ; Humphreys v. The State, 75 Ind. (k) Cox v. Hitchings, 21 Ind. 219; 409. Peck v. Hensley, 21 Ind. 344; Pauley (n) Graeter v. Fowler, 7 Blkf. 554; v. Short, 41 Ind. ISO; Brownlee v. Guard v. Risk, 11 Ind. 156; Ruger v. Kenneipp, 41 Ind. 216; Bell v. Tan- Bungan, 10 Ind. 451. guy, 46 Ind. 49 ; Talcott v. Jackson, 41 (o) Todd v. The State. 25 Ind. 212. Ind. 201 ; Chamberlain v. Reid, 49 Ind. 588 NEW TRIAL VENIRE DE NOVO. [CHAP. of Graeter v. Fowler, and Cummins v. Walden, in which it was held that the plaintiff was not entitled to a new trial, say : " It is not our purpose here to question the correctness of the ruling of the court in Graeter v. Fowler, supra. The application for the new trial was made by the plaintiff, and the case therefore came clearly within the rule laid down in Cummins v. Walden, 4 Blackf. 307, to which we have referred, but we think the reasons given by the learned judge are stated too broadly. "P 901. Other grounds of surprise. A party may have other and different grounds of surprise, unconnected with the evidence of either of the parties, that will entitle him to a new trial. Thus it has been held that where a cause has been called and passed, and the court announced that causes then passed would not be again called for trial, and the attorney for the defendants informed them of the fact, and told them they need not attend longer upon the court, and, subsequently, at the same term, the cause was called for trial, and in the absence of the defendants over the objection of their attorney, was tried by the court; upon a showing of these facts, and, in addition, that the defend- ants had a valid defense setting it out, and that they were, by reason of the facts stated, unprepared for trial, a new trial should have been granted. q Surprise, occasioned by a correct ruling of the court upon a question of law, is not a ground for a new trial/ So of surprise at the result of a trial. 8 902. Diligence must have been used to avoid surprise. The party asking for relief from a verdict on the ground of surprise must show that he is without fault. Although it may appear that he was surprised in such way as to entitle him to relief, if he might, with proper care and diligence, have avoided the surprise, a new trial will be denied. 1 And the negligence of the attorney is the negligence of the party." 903. Must have caused injury. The surprise complained of must have been injurious to the party complaining, and it must appear (p) Todd v. The State, 25 Ind. 212, (s) Lane v. Brown, 22 Ind. 239. 221. (t) Cox v. Harvey, 53 Ind. 174; (q) Edsall v. Ayers, 15 Ind. 286; Stanley v. Sutherland, 54 Ind. 339. Vol. 3, pp. 433, 434. (u) Cox v. Harvey, 53 Ind. 174. (r) Reals v. Beals, 27 Ind. 77. XXI.] NEW TRIAL VENIRE DE NOVO. 589 that if a new trial is granted the effect of the surprise will probably be avoided on a second trial. T If, therefore, it appears that the verdict is clearly right under the evidence, and that the result must be the same if a second trial is al- lowed, a riew trial will be denied. w 4. EXCESSIVE DAMAGES. 904. Applies to actions for tort. This specification, it is be- lieved, was intended to apply solely to actions for damages growing out of tort. Otherwise the next following specification, which is made to apply to " actions on contract, and for injury or detention of prop- erty," would be surplusage so far as it relates to a recovery for too much. 1 It is held that, in order to raise the question of the amount of dam- ages in an action on contract, the fifth statutory cause, " error in the assessment of the amount of recovery," must be assigned. ' Whether the question as to the amount of recovery could be pre- sented, in an action on contract, by an assignment as a reason fur a new trial that the damages were excessive, was presented in a later case, but the point was not decided. 2 According to the syllabus, it is held that the cause for a new trial, that the damages are excessive, applies to actions on contract as well as for tort, but the court expressly states that, having come to the conclusion that the offer to remit came too late, other questions discussed, one of which was whether such an assignment raised the question of the amount of the recovery or not, were not decided. But the question before the court was whether a new trial had been prop- erly granted in the court below, and it seems that the new trial was granted on the ground and under the assignment that the damages were excessive. The court held the new trial was properly granted, and so far it may be regarded as a decision that such a reason for a new trial is proper in an action on contract. In a later case it is expressly held that such a reason for a new trial raises the question in an action on the bond of a county treasurer for money unaccounted for. a (v) Stanley v. Sutherland, 54 Ind. (z) Hill v. Ntewman, 47 Ind. 187, 339, 355; Kuger i: Bungan, 10 Ind. 197. 451. (a) Hostetler v. The State, 62 Ind. (w) Billiard' s New Trials, 2d ed., p. 183. See. on this point, The Board, 524, \ 6. etc., of Harrison County v. Byrne, 67 (x) Buskirk's Prac., p. 234. Ind. 21. (y) Dix v. Akers, 30 Ind. 431. 590 NEW TRIAL VENIRE DE NOVO. [CHAP. The question can not be regarded as settled by the decided cases. The only safe practice for the present is to assign both the fourth and fifth causes where the damages assessed are too large. In actions for tort the fourth is the only cause that can be properly assigned. 905. Can not be assigned as error. The cases are numerous in which the attempt has been made to raise the question of the amount of damages, in the supreme court, by an assignment of error that the damages are excessive. It has been uniformly held that the question can not be presented by an assignment of error. It is made a cause for a new trial, and if not presented by a motion for a new trial it is waived. b The question of the amount of damages will not be considered where the motion is made on other grounds. But the court will look into the question of illegal evidence in de- termining the question of damages. d 906. Damages must be grossly excessive. The amount of damages to be assessed is a matter so peculiarly within the province of the jury that the courts rarely interfere with the verdict on the ground that the damages are excessive in actions for tort. The rule is that a new trial will not be granted unless the damages assessed are grossly and outrageously excessive. 6 907. Omission to assess nominal damages. The rule is well established that a new trial will not be granted for the failure to assess nominal damages, where substantial justice has been done. f 908. Remittitur. Where the damages are excessive, or the (b) Campbell v. Swasey, 12 Ind. 70; (d) Oiler v. Bodkey, 17 Ind. 600. Brown v. Ellis, 35 Ind. 377; The (e) Picquet v. McKay, 2 Blkf. 465; Western Union Tel. COD. Hopkins, 49 Clarkson v. McCarty. 5 Blkf. 574; Ind. 223; Marks v. The Trustees of Guard v. Kisk, 11 Ind. 156; Yater t>. Purdue University, 56 Ind. 288; Hunt Mullen, 23 Ind. 562; Alexanders v. Milligan, 57 Ind. 141 ; Rout v. Man- Thomas, 25 Ind. 268; The Pittsburgh, ifee, 59 Ind. 525; Floyd v. Maddox, 68 etc., K. W. Co. v. Hennigh, 39 Ind. Ind. 124; Warner v. Curran, 75 Ind. 509; The Town of Westerville v. 309. Freeman, 66 Ind. 255; Hoagland v. (c) Spurrier v. Briggs, 17 Ind. 529; Moore, 2 Blkf. 167; Harris v. Eupel, Walpole v. Carlisle, 32 Ind. 415; The 14 Ind. 209. But see, on this point, City of Indianapolis v. Parker, 31 Ind. The Toledo, etc., R. W. Co. v. Wright, 230; Bradley v. Bradley, 45 Ind. 67; 68 Ind. 586. Buskirk's Prac., p. 236; McGrimes v. (f ) The State v. Miller, 5 Blkf. 381 r The State, 30 Ind. 140; Huston v. Jennings v. Loring, 5 Ind. 250; Hud* Greenwood, 30 Ind. 364. speth v. Allen, 26 Ind. 165. XXI.] NEW TRIAL VENIRE DE NOVo. 591 amount of recovery assessed too large, under the fifth specification the plaintiff may avoid the granting of a new trial by entering a remittitur of the excessive 'damages. 8 This should be done before the motion is ruled upon. h But it is held that the remittitur may be entered in the appellate court to prevent a reversal, but does not avoid costs of the appeal.' And, where the true amount can be ascertained by the supreme court, the cause will be affirmed for that amount on condition that the residue be remitted, otherwise the judgment will be reversed. j It has been held that the trial court can not fix the proper amount of recovery and require the plaintiff to remit the residue or grant a new trial. k The case cited was one where the damages could not be determined by calculation, but depended upon uncertain and conflicting evidence. If the supreme court can affirm or reverse a judgment, on the condi- tion that a remittitur be entered, there is no good reason for holding that the court below can not grant or refuse a new trial on the same condition, thus avoiding the expense of an appeal. No injury can re- sult from such ruling, as the action of the court would be subject to review by the supreme court if the amount required to be remitted is too large, thus reducing the amount of theplaintiff srecovery below the proper amount. Where the amount of damages to which the plaintiff is entitled is uncertain, depending upon conflicting evidence, a remittitur should not be required, as the question is peculiarly one for the jury. A new trial should be granted at once if the court finds the damages to be exces- sive. 5. ERROR IN THE ASSESSMENT OF THE AMOUNT OF RECOVERY, WHETHER TOO LARGE OR TOO SMALL. 909. "What included within this specification. This cause for a new trial is expressly limited to actions upon contract, or for the injury or detention of property. 1 So, where the action falls within those named, the cause assigned, where the amount of recovery assessed is too large, should be " error (g) Lambert v. Blackman, 1 Blkf. 425; Schafer v. Smith, 63 Ind. 227; 59; Murray ^Phillips, 59 Ind. 56. Frazer v. Boss, 66 Ind. 1. (h) Hill v. Newman, 47 Ind. 187. (k) Cromwell v. Wilkinson, 18 Ind. (i) Humphrey v. Merit, 51 Ind. 197; 365. Pate v. Roberts, 55 Ind. 277. (1) R. S. 1881, 559. (j) Browning . Merritt, 61 Ind. 592 NEW TRIAL VENIRE DE NOVO. [CHAP. ill assessing the amount of recovery too large," and not on the ground of excessive damages." 1 That the amount of recovery assessed is too small must be assigned under this specification, as it is not provided for by any other." 910. Where cause will be reversed on ground that assess- ment is too large. In actions falling within this specification, the amount of recovery can usually be determined by the pecuniary I <> resulting to the plaintiff; therefore, the rule that the verdjct will not be set aside, unless the damages are outrageously excessive, does not apply. If it appears that the finding is too large a new trial will be granted. But the supreme court will not reverse a cause where the amount of the excess is so small as not to affect the substantial rights of the parties. p Nor where the amount of recovery depends upon a calculation, the data for which are uncertain.q 911. Finding for more than amount claimed in complaint. It was formerly held that it was error to render judgment for a sum greater than that prayed for in the complaint. 1 " But this is not the law under the present code. The amount the plaintiff is entitled to recover must be determined from the facts stated, and not from the prayer of his complaint." The rule is otherwise where there is a default.' The mere fact that the verdict or finding is for an amount greater than that prayed for in the complaint, where the facts alleged as a cause of action entitle the plaintiff to recover the amount found, is not cause for a new trial. The prayer in the complaint may be amended after verdict to corres- pond therewith, and if not made in the court below will be treated as made on appeal." (m) Dix v. Akers, 30 Ind. 431-; Bus- (s) 11. S. 1881, 338; Baker v. Sim- kirk's Prac. 234 ; ante, 904. mons, 40 Ind. 442 ; Barnes r. Smith, (n) Frank v. Kessler, 30 Ind. 8. 34 Ind. 616; Webb v. Thompson, 23 (o) Nutter v. The Junction R. R. Ind. 428; liobinson v. Jamison, 33 Co., 13 Ind. 479. Ind. 122; Raymond r. Williams, 24 (p) Hall v. Hall, 34 Ind. 314. Ind. 41G ; ante, g 848. (q) Wilson v. Vance, 34 Ind. 440. (t) R. S. 1881, 385; ante, 425. (r) Roberts v. Muir, 7 Ind. 544; (v) Webb v. Thompson, 23 Ind. O'Neal v. Wade, 3 Ind. 410. 428; Baker r. Simmons, 40 lad. 442. XXI.] NEW TRIAL VENIRE DE NOVO. 593 912. "Where there is a demurrer to the evidence. Upon a demurrer to the evidence being overruled, a jury may be called to as- sess the damages, or they may be assessed by the court. In either case the question as to the amount of damages, whether too large or too small, or whether excessive under the fourth specification of the statute, must be raised by a motion for a new trial as in other cases." As to all other questions, where there is a demurrer to the evidence, no motion is necessary or proper. * 913. Amount of recovery too small. The statute provides: "A new trial shall not be granted on account of the smallness of the damages, in actions for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury ' sustained. " y This section makes a clear distinction between actions for an injury to the person or reputation and other cases. Where the action is for an injury to the person or reputation, the language of the statute is unqualified that a new trial shall not be granted on account of the smalluess of the damages. It has been held that the clause of the section, "nor in any other action where the damages shall equal the actual pecuniary injury sus- tained," qualifies the whole of the section going before it, and, there- fore, a new trial might be granted in all cases named therein where the damages assessed did not equal the pecuniary injury sustained. 2 But this case has been expressly overruled.* In the case of Sharpe v. O'Brien, the court say: "We are quite clear that the section was intended to and does make a distinction be- tween actions for an injury to the person or reputation, and the other actions alluded to, when the damages shall equal the pecuniary injury. In actions for injuries to the person or reputation, no matter how small the damages may be, whether they equal the pecuniary injury sustained or not, the court can not, for that reason, grant a new trial. But in the other actions referred to, if the damages do not amount to the pecuni- ary injury sustained the court may grant a new trial. We are con- firmed in the opinion that this construction is correct, from the fact that, as we have seen, no provision is made among the reasons for a (w) Lindley v. Kelley, 42 Ind. 294; (y) R. S. 1881, 560. Strough i\ Gear, 48 Ind. 100. (z) Sullivan v. Wilson, 15 Ind. 246. (x) Strough v. Gear, 48 Ind. 100. (a) Sharpe v. O'Brien, 39 Ind. 501. 38 594 NEW TRIAL VENIRE DE NOVO. [CHAP* new trial for granting a new trial in such a case as this for the small- ness of the damages. !' b The rule that a new trial can not be granted on account of the smallness of the damages, has been applied to an action, by an ad- ministrator, for an injury to the person resulting in death. 6. THAT THE VERDICT IS NOT SUSTAINED BY SUFFICIENT EVIDENCE OR IS CONTRARY TO LAW. 914. Not sustained by sufficient evidence. The decided cases arising under this specification are very numerous. It is verv rarely the case that a cause will be reversed in the supreme court for this cause. The rule by which the court below should be governed, iiowever, is essentially different from that by which the appellate court should be controlled. The court below has the same opportunity to know what evidence is given at the trial that the jury has, and is much more competent to determine the weight that should be given to the testimony of witnesses. It is a well-known fact that juries are not always controlled by the evidence. It is not uncommon for a verdict to be returned, not only against the weight of, but in total disregard and in defiance of the evidence. The victim of a strong case like this sometimes finds relief in an appellate court. Nothing short of such a case can avail him on appeal. For this reason it should be the especial care of the lower courts to see that the verdict of a jury, known to be against the clear weight of the evidence, should be set aside and a new trial granted. There is, perhaps, no part of the duties of the trial courts that is so constantly neglected and openly violated as the one that requires that a verdict, not sustained by sufficient evi- dence, shall be set aside. The delicacy evinced by the judges, when called upon to set aside the verdict of a jury, is remarkable, and not unfrequently results in a positive denial of justice. While the sanc- tity of a finding rendered by a jury should call for proper respect, it should not prevent the court from setting aside the verdict when it is known to be wrong, nor be allowed to stand in the way of a fair and impartial administration of justice. The tendency of judges to avoid the duty of setting aside unjust verdicts has received the attention of our own as well as that of other courts. A clear dis- tinction is made between the duty of the trial and appellate courts. Mr. Buskirk, in his work on Practice, says : " The trial judge should fearlessly grant a new trial whenever he believes the justice of the (b) Buskirk's Prac. 235. (c) Douthitt v. Smith, Adm'r, 69 Ind. 463. XXI.] NEW TRIAL VENIRE DE NOVO. 595 case requires it. This would save much delay and expense to litigants ; for, when a new trial is improperly refused, the party is driven to seek relief in an appellate court ; and, if the judgment is reversed, there can seldom be a full and fair re-trial of the cause. Some of the wit- nesses may be dead ; some may have removed to distant parts of the country ; and the recollection of the actual facts has faded from the memories of such of the witnesses as remain. Great deference ought to be paid to the verdict of a jury, and a new trial should be refused whenever the verdict is fairly and reasonably sustained by the evi- dence; but, o'n the other hand, whenever the judge, by his more ma- tured judgment and greater experience, sees that there L a failure cf proof on some point material to the issue, and which is necessary to support the verdict, or whenever the evidence plainly and manifestly fails to sustain the finding, a new trial should be awarded." d The rule that should govern the trial court is that a new trial should be granted, unless it clearly appears that substantial justice has been done. 6 In the case of Christie v. Holmes the rule is clearly stated : "It should always be kept in mind that the rule which governs a circuit court in deciding a motion for a new trial, upon the ground that the verdict is not sustained by sufficient evidence, is very different from the rule which governs the supreme court in deciding the same ques- tion when brought before it by appeal. The circuit court presides over the case, knows with what ability or animus it is prosecuted or defended, has the jury and their conduct before it, sees the witnesses, their looks and manners, hears their statements and knows whether willingly or reluctantly made ; in short, sees the actual trial from its beginning, and throughout its progress, to the end, with all the indices of truth and falsehood before it, from all of which it may judge the question and decide. " In the circuit court it must clearly appear that substantial justice has been done by the verdict or a new trial should be granted ; in the supreme court it must clearly appear that substantial justice has not been done or the judgment should be affirmed. If each court will constantly remember the rule of law which governs it, and always put it into practical effect, then substantial justice will be done in every case." 915. Rule in the supreme court. In the supreme court the rule is materially different. A cause will not be reversed if the evi- (d) Buskirk's Prac., p. 237. (e) Christie r. Holmes, 57 Ind. 314; Evans v. >iewland, 34 Ind. 112. 596 NEW TRIAL VENIRE DE NOVO. [CHAP. dence is conflicting. But where the evidence is all against the verdict, or where there is no evidence to sustain it, or where there is no evi- dence to prove any one fact necessary to entitle the successful party to recover, the cause will be reversed on appeal.' The rule is the same whether the finding is by a jury or by the court. g The reason of the rule will be found fully and clearly stated in Cox v. The State and Christie v. Holmes. There are numerous other cases bearing upon this question, but :v full citation of them here could serve no useful purpose. Enough have been cited to show what the rule is, and the reasons upon which it is founded. The number of cases reversed on appeal for this canst' proves how frequently the lower courts allow unjust verdicts to stand, on account of their reluctance to interfere where a jury have decided. 916. Verdict contrary to law. This branch of the sixth speci- fication may be given a very broad application. In one sense, every verdict that is not sustained by the evidence, when applied to the law, or where any error has been committed during the trial affecting the result, would be a verdict contrary to law. It is said : "A motion for a new trial on the ground that the verdict or decision is contrary to law is somewhat in the nature of a demurrer to the evidence. It admits all the evidence given upon the trial, but says that, as the verdict or decision based upon such evidence is con- trary to the general principles of the law applicable to the issues in- volved, judgment should not be rendered thereon. Such a motion pre- sents to the nisi prius and appellate courts a question of law merely." h The supreme court has also endeavored to state definitely what is meant by the term " contrary to law : " " One of the causes for a new trial is that the verdict is ' contrary to law.' What is meant by the phrase ' contrary to law/ as used in the statute ? Clearly not a verdict that is defective or insufficient in law merely. A verdict may be de- fective and insufficient in law, and yet not be contrary thereto. We (f) Crossly v. O'Brien, 24 Ind. 325 ; Bride, 69 Ind. 396; Cunningham >-. Roe v. Cronkhite, 55 Ind. 183; Davis Spillman, 72 Ind. 62; Cox v. The v. Grater, 62 Ind. 408; Davis v. Ham- State, 49 Ind. 568; Christie v. Holmes, ilton, 71 Ind. 135; Thomas v. Patton, 57 Ind. 314; Hutchison v. Lewis, 75 71 Ind. 241 ; Daubenspeck v. Biggs, 71 Ind. 55; Cooper r. The State, 75 Ind. Ind. 255; Reyman v. Mosher, 71 Ind. 62. 596; Spicely v. True, 14 Ind. 437; Be- (g) Riley v. Boyer, 76 Ind. 152; The van v. Tomlinson, 25 Ind. 253; Evans O. & M. R. W. Co. v. Selby, 47 Ind. r. Xewland, 34 Ind. 112; Butterfield 471. v. Trittipo, 67 Ind. 338; Sharp v. Me- (h) Buskirk's Prao., p. 239. XXI.] M.\V TRIAL VENIRE DE NOVO. 597 think that a verdict which is contrary to law is one which is contrary to the principles of law as applied to the facts which the jury were called upon to try, contrary to the principles of law which should govern the canse."i In a later case the court quote the language of Bosseker v. Cramer, and say: " It is not always easy to define a verdict contrary to law. We fully approve of this general definition. That a verdict is con- trary to law is one of the causes for which a new trial may be granted under our code; and we think, in the meaning of the code, that a ver- dict which is improperly affected by any error of law occurring at the trial is a verdict contrary to law." j The language of this last decision makes this specification cover every error that could be reached under the eighth " error of law oc- curring at the trial." Thus a party may reach the same questions under either assignment. Under the sixth, the motion for a new trial need not point out the particular error complained of, as it is sufficient, in assigning this cause, to use the general language of the statute. That there is no proof of the venue in a criminal case, it is held, may be reached by either of the grounds named in specification sixth. k So the same question may arise under the two assignments, " not sustained by sufficient evidence," and " contrary to law," as it is mani- fest that a verdict not supported by the evidence is a verdict contrary to law. 1 Where there is a special finding of facts by the court that is con- trary to law, or not sustained by sufficient evidence, the remedy is by motion for a new trial. 1 " It is held that, " if there was proof pertinent to any issue on which the court ought to have found facts which were not found, the remedy would be by motion for a new trial, on the ground. that the finding is contrary to law." So if the special findings by the court or by a jury are not sustained by the evidence. That the verdict is contrary to law can not be assigned as error in the supreme court. p (i) Bosseker v. Cramer, 18 Ind. 44. (o) Schmitz . Lauferty, 29 Ind. (j) Robinson Machine .Works v. 400; The Montgomery, etc., Gravel Chandler, 56 Ind. 575, 583. Road Co. v. Rock, 41 Ind. 263 ; The (k) Garstv. The-State, 68 Ind. 101. Indianapolis, etc., R. R. Co. v. Stout, (1) Potts v. Felton, 70 Ind. 166. 53 Ind. 143. (m) Lockwood v. Dills, 74 Ind. 56. (p) Marsh v. Terrell, 63 Ind. 363. (n) Ex parte Walls, 73 Ind. 95, 110; Jones r. Baird, 76 Ind. 164. 598 NEW TRIAL VENIRE DE NOVO. [CHAP. 917. All of the evidence must be in the record. The ques- tions whether the verdict is sustained by sufficient evidence or is con- trary to law, can only be determined in the supreme court from the evidence, together with the law applicable thereto. Therefore, in or- der to make either of these causes available on appeal, the record must contain all of the evidence given at the trial. q Where the evidence is not in the record the supreme court will pre- sume in favor of the verdict. This rule applies to special findings by the court. 1 7. NEWLY DISCOVERED EVIDENCE. 918. What must be shown under this specification. It must be shown, under this specification : 1. The names of the witnesses. 8 2. The testimony expected from them. 3. That the evidence is newly discovered. 4. That due diligence was used to procure it. 5. That it is material. 6. That it is not cumulative. 7. That it is not impeaching. 8. That it will probably change the result. 9. The affidavit of the witness must be produced.* The motion must state the grounds specifically . u (1) 919. That the evidence has been discovered since the trial. If the evidence was known to the party at the trial it was his duty to produce it then. He is not entitled to relief under this speci- fication unless the evidence was unknown, no matter hosv material it may be. If the evidence could not, for any reason, be produced at the trial, he must have resorted to a motion for a continuance.' If he has failed in this, his right to rely upon such evidence is thereby waived. It is absolutely necessary, therefore, that it should be shown in support of the motion that the evidence has been discovered since the trial. w This rule is strictly enforced by the decided cases. It is held to be no ground for a new trial that a witness who refused to testify at the (q) Vaughan v. Ferrall, 57 Ind.182; (u) R. . 1881, 1 562; ante, I 871. Buskirk's Prac., p. 240, and cases cited. (v) Kosencrants v. The State, 6 Ind. (r) Grabam v. The State, 66 Ind. 407. 386. (w) Lister v. Boker, G Blkf. 439; (s) Martin v. Garner, 40 Ind. 351. Simpson' v. "Wilson, 6 Ind. 474; Mur- (t) Buskirk's Prac., p. 240; For- phy v. The State, 6 Ind. 490; Moniger raster v. Guard, 12 Am. Dec. 141, 143, v. The State, 48 Ind. 383. and authorities cited ; s. c., Breese, 74, (1) Form of motion for new trial, Vol. 3, p. 432-434 ; affidavits in support of motion, pp. 435, 436. XXI. J NEW TRIAL VENIRE DE NOVO. 599 trial, on the ground that it would criminate him, has since consented to testify. 1 So, where a witness makes affidavit that, upon his examination, he had forgotten to testify to a material fact. y 920. Diligence used to procure the evidence. It is not enough that the evidence was not discovered. It must be clearly shown that the proper diligence was used to discover it before the trial. 2 It is not sufficient to state generally that due diligence has been used to procure the evidence. The facts constituting the diligence must be shown in support of the motion. 3 It has been held, in some cases, that the necessity of showing dili- gence may be avoided by a sufficient excuse. Thus, where it was shown that the defendant, in a criminal case, could prove a material fact by a witness named, that he had been in jail siuce the charge was preferred against him, that he had no means or opportunity to prepare for trial or employ counsel, that counsel was assigned to him when the cause was called for trial who knew nothing of the circumstances, ex- cept as they were developed on the trial, and that unexpected evidence was produced at the trial that could be met by the testimony of the absent witness, it was held that a new trial should have been granted.* 1 It is no excuse that the witness was out of the state and could not be subpoenaed. If his place of residence is known or can, with the proper diligence, be discovered, his deposition must be taken. c 921. Evidence must be material. The discovered evidence must be material to the issues in the cause. d This need not be affirma- (x) Lister v. Boker, 6 Ind. 439. v. Hare, 49 Ind. 268; Bowman v. Clem- (y) Duignan v. Wyatt, 3 Blkf. 385; mer, 50 Ind. 10; The Ft. "Wayne, Humphreys v. Klick, 49 Ind. 189. Muncie, etc., R. R. Co. v. Thalor, 51 (z) Deputy v. Tobias, 1 Blkf. 311; Ind. 485; Bowers v. Bowers, 53 Ind. Coe v. Givan, 1 Blkf. 367; Doubleday 430; Lewis v. Crow, 69 Ind. 434; To- v. Makepeace, 4 Blkf. 9; Robinoe v. ney v. Toney, 73 Ind. 34; Arms v. Doe, 6 Blkf. 85; Mclntire v. Young, 6 Beitn;an, 73 Ind. 85. Blkf. 496; Bush v. Mahon, 2 Ind. 44; (a) Robinoe v. Doe, 6 Blkf. 85; Har- Conwell v. Anderson, 2 Ind. 122; Tay- rington T\ Witherow, 2 Blkf. 37; Reno lori>. The State, 4 Ind. 540; Simpson r. Robertson, 48 Ind. 106; Rickart v r. Wilson, 6 Ind. 474; Murphy v. The Davis, 42 Ind. 164. State, 6 Ind. 490 ; Ruger r. Bungan, 10 (b) Rosencrants v. The State, 6 Ind. Ind. 451; Yater v. Mullen, 23 Ind. 407; Keeley v. The State, 14 Ind. 36. 562; Rickart ?. Davis, 42 Ind. 164; (c) Conwellv. Anderson, 2 Ind. 122. Reno v. Robertson, 48 Ind. 106; Cook (d) Swilt r. \Vakeman, 9 Ind. 652; 600 NEW TRIAL VENIRE DE NOVO. tively stated in the motion. The mere statement of the evidence will usually show whether or not it is material. Where this appears from the evidence alone, it is sufficient. But where it does not so appear on its face, its materiality must be shown. If the evidence shows upon its face to be immaterial, a statement in the motion or affidavits in support thereof, that it is material, will be disregarded. 922. Cumulative evidence. It is well established that the dis- covery of evidence that is merely cumulative of that given on the trial is not sufficient ground for a new trial. 6 "Cumulative evidence is of the same kind, to the same point. Thus, if a fact is attempted to be proved by the verbal admission of a party, evidence of another verbal admission of the same fact is cumu- lative ; but evidence of other circumstances tending to establish the fact is not."' The evidence of the party is treated as that of other witnesses. Ac- cordingly it is held that, where the party's own testimony was the only evidence given on a point, and the discovered evidence is cumulative of his testimony, the new trial must be denied. 8 923. Impeaching evidence. As a rule, evidence that goes merely to impeach a witness who has testified at the trial, either by proving bad character or contradictory statements, will not be suffi- cient to entitle a party to a new trial. 11 This rule can not be regarded as universal, though the exceptions thereto are not well defined by the decided cases. In an early case it Townsend 0. The State, 13 Irid. 357; v. Marshall's Adm'r, 12 Ind/ 609; Hous- Moniger . The State, 48 Ind. 383; ton v. Bruner, 39 Ind. 376; Cox v. Raler v. The State, 49 Ind. 507; Bus- Harvey, 53 Ind. 174; Shirel v. Bax- kirk's Prac., p. 241 ; Bennett v. Holmes, ter, 71 Ind. 352. 32 Ind. 108. (g) Fox v. Reynolds, 24 Ind. 46; (e) Jennings v. Loring, 5 Ind. 250; Atkinson v.. Martin, 39 Ind. 242. Bronson r. Ilickman. 10 Ind. 3; Hum- (h) Fleming v. The State, 11 Ind. phries v. Marshall's Adm'r, 12 Ind. 234; Bland ?>..The State, 2 Ind. 608; 609; Fox v. Reynolds, 24 Ind. 46; Keck v. Umphries, 4 Ind. 492; Taylor Houston v. Bruner, 39 Ind. 376; At- v. The State, 4 Ind. 540; O'Dea v. The kinson v. Martin, 39 Ind. 242; Zouker State, 57 Ind. 31; Hatterson v. The v. Wiest, 42 Ind. 169 ; Winsett v. The State, 63 Ind. 531 ; Evans v. The State, State, 57 Ind. 26 ; Dodds v. Vannoy, 61 67 Ind. 68; The State v. Clark, 16 Ind. Ind. 89; Batterson v. The State, 63 97; Mclntire v. Young, 6 Blkf, 496; Ind. 531; Shirel v. Baxter, 71 Ind. Elliott v. Adams, 8 Blkf, 103 ; Jackson 352; Williams v. Potter, 72 Ind. 354; v. Sharpe's Adm'r, 29 Ind. 167; Martin The State v. Clark, 16 Ind. 97. v. Garner, 40 Ind. 351 ; Tholke <. The (f ) 1 Greenleaf's Ev., 2; Humphries State, 50 Ind. 355. XXI. J XEW TRIAL VENIRE DE XOVO. 601 was said: "Unless the impeaching evidence is strong, and pointed directly to the merits, so as to raise a violent presumption of its being successful with the jury, the verdict should not be disturbed." ' It is intimated, though not decided, in a later case, that where the evidence goes to impeach a party the rule should be different.-" Again, it is said that " there may be some exceptions to this general rule." k A case may arise in practice where the impeaching evidence will have such weight as to authorize a new trial, but none such have been found, and no exceptions are stated in the decided cases. The admissions made by the relatrix in a bastardy proceeding can only be proved as impeaching statements. She is not a party, and her dt-clarations can not be proved as the admissions of a party. 1 924. Evidence must probably produce a different result. The evidence discovered, to authorize a new trial, must be of such importance that it will probably produce a different result on a second trial. 10 It must appear that the evidence can probably be produced." 925. Affidavits of party and witness necessary. The mo- tion must not only be supported by the affidavit of the party, but the affidavit of the witness that he will testify to the facts set out in the motion must be produced, or its absence must be satisfactorily ac- counted for.(l) It is not a sufficient excuse for not producing the affidavit of the witness that he is interested adversely to the party making the motion, nor that he refuses to make the affidavit, as the court, upon a showing of the facts, will compel him to make affidavit of the matters within his knowledge. 1 ' It was held a sufficient excuse that the witness was (i) Taylor v. The State, 4 Ind. 540. State, f 3 Ind. 278; O'Dea v. The State, ( j) O'Dea v. The State, 57 Ind. 31 . 57 Ind. 31. (k) Evans v. The State. 07 Ind. 68; (n) Bissot v. The State, 53 Ind. 408. Humphreys r. The State. 75 Ind. 469. (o) Priddy v. Dodd, 4 Ind. 84; Gib- (1) Tholke r. The State, 50 Ind. 355. son v. The State, 9 Ind. 264; Beard v. (m) Hull t-. Kirkpatru-k, 4 Ind. 637; The First Presbyterian Church, 10 Simpson t-. Wilson, 6 Ind. 474; Bron- Ind. 568; Cummins v. Walden, 4 s.-n v. Hickman, 10 Ind. 3; Cox v. Blkf. 307 ; McQueen r. Stewart, 7 Ind. H'ltchings, 21 Ind. 219; Freeman v. 535; Brandendistle v. "Wilhelm, 32 Bowman, 25 Ind. 236; Humphreys v. Ind. 496; Shipman v. The State, 38 Klick, 49 Ind. 189; Rainey v. The Ind. 549; Hill v. Roach, 72 Ind. 57. (p) Rater v. The State, 49 Ind. 507. (1) Form of affidavits, Vol. 3, p. 435, 436. 602 NEW TRIAL VENIRE DE NOVO. [CHAP. out of the state, and the defendant applying for a new trial was in jail, and without means to procure the affidavit. q It has been held that where the motion was supported by the affidavits of both the party and the witness, but the party did not show in his affidavit that he believed the discovered evidence to be true, and it was absolutely inconsistent with, his own testimony at the trial, the new trial was properly refused/ The party's affidavit must give the name of the witness, or show that the name is unknown. 3 926. Evidence must be in the record. The rule that the right to a new trial depends in part upon the question whether it would change the result on the second trial or not, can only be deter- mined in the supreme court by an examination of the evidence given on the former trial, as well as that discovered since. It is absolutely necessary, therefore, to present the question under this specification, on appeal, that all of the evidence should be in the record. 1 The evidence need not be set out in the motion or affidavits, as in case of a complaint for a new trial after the term. Being a part of the original action, the trial court must know what evidence was given on the trial. But, on appeal, the evidence given at the trial and that discovered must anpfjn- i:i a bill of exceptions. 8. ERROli O:' LAW OCCURRING AT THE TRIAL. 927. Generally. This specification relates exclusively to such errors as may he committed at the trial. When the trial may be re- garded as commenced is a question of some doubt. For some pur- poses, the trial is held to be commenced with the swearing of the jury," and to continue until the motion for a new trial is disposed of. v There are other matters more nearly connected with the trial about which there is some question. For example, questions arising upon the right to a trial by jury ; in the selection of the jury, questions of the competency of jurors, the right to challenge, and the like. These questions, although nearly (q) Gibson v. The State, 9 Ind. 264. den v. Wade, 23 Tnd. 471 ; Larrimore (r) Bennett v. Holmes, 32 Ind. 108; v. Williams, 30 Ind. 18; Sanders P. Ritchey r. West, 23 111. 385. Loy, 45 Ind. 229; Jackson v. Fowler, (s) Martin v. Garver, 40 Ind. 351. 63 Ind. 85; Clare . The State, 68 Ind (t) Cones v. Ryman, 9 Ind. 277; 17; Buskirk's Prac..241. O'Brian v. The State, 14 Ind. 469; (u) Glen v. Clore, 42 Ind. 60; Jenks Walpole v. Atkinson, 18 Ind. 434; v. The State, 39 Ind. 1. Ruddiek v. Ruddiek, 21 Ind. 163; Cow- (v) Jenks v. The State, 39 Ind. 1. XXI.] NEW TRIAL VENIRE DE NOVO. 603 connected with, can not be regarded as a part of the trial, but rather as settling who the triers shall be. w The question is not one of practical importance, where it is certain that the error complained of is within any of the statutory causes. It is not necessary to designate in the motion whether the error is one occurring at or before the trial. It is only necessary to state specifically what the error is, x and if ii falls within either specification it is sufficient. This is not true whert the cause must be assigned in the language of the statute, as, for ex- ample, excessive damages. Under this specification the cause must bf specifically assigned, and it is not necessary to show that it is " erroi of law occurring at the trial." If the error should fall within the first specification, "irregularity in the proceedings of the court," etc., it would be equally available. 928. Causes enumerated. The following are some of the errors that have been held to be causes for a new trial, and are within this specification : 1. In denying the right to open and close. - v 2. Rulings as to the competency of jurors. 2 3. Entering judgment against a party who has not appeared, with- out taking a default. 4 4. Error in the admission or exclusion of evidence. b 5. Error in giving, refusing, or modifying instructions. 6. Submitting or refusing to submit interrogatories to the jury. d 7. Allowing the jury to take out evidence. 6 8. Objections to the form of the verdict. f 9. Mistake in special finding. 8 929. Admission or exclusion of evidence. One of the causes for a new trial that arises most frequently under the eighth specifica- tion, is error in the admission or exclusion of evidence. Like most (w) But see Iglehart's PI. and Pr. (b) Post, \ 929. 243, 43. (c) Higham v. Warner, 69 Ind. 549; (x) Taylor v. Skelkett, 66 Ind. 297. post, \ 930. (y) Abshire r. The State, 52 Ind. (d) White v, Garretson, 34 Ind. 514; 99; White v. Carlton, 52 Ind. 371. Nichols v. The State, 65 Ind. 512; (z) The Lafayette Plank Road Co. Higham v. Warner, 69 Ind. 549. v. The New Albany, etc., K. K. Co., 13 (e) Nichols v. The State, 65 Ind. Ind. 90; Pickens v. Hobbs, 42 Ind. 512. 270; Hudspeth v. Herston,64 Ind. 133; (f ) Weatherby v. Higgins, 6 Ind. 73. Lamphier v. The State, 70 Ind. 317. (g) Dehority v. Nelson, 56 Ind. 414. (a) Smith v. Foster, 59 Ind. 595. 6(M NEW TRIAL VENFRE DE NOVO. [CHAP. other causes, tiie ruling must appear to affect the substantial rights of the party. 1 ' The motion must point out the evidence admitted or excluded with such certainty as to call the attention of the court and adverse party thereto, and sufficiently identify the same. 1 The evidence must be in the record, on appeal, by bill of excep- tions.-' The objection to the evidence and the exception thereto must be made and taken at the time. k Time may be given ill which to prepare and file a bill of exceptions, but when filed it must show that the exception was taken at the time tlie evidence ivcus offered. It is not sufficient to except in the bill of ex- ceptions, as is frequently done, by saying "toivhich the plaintiff excepts." Such an exception applies to the time the bill is signed, and is too late. It must show that the plaintiff at the time excepted and now ex- cepts. 1 Under the code of 1852, where an exception was taken to the ad- mission or exclusion of evidence at one term, and the motion for a new trial ruled upon at a subsequent one, the exception taken to the evi- dence must have been reduced to writing, or time given, at the term at which the exception was taken. But the present code changes the law in this respect by providing: " That if a motion for a new trial shall be filed in a cause in which such decision so excepted to is assigned as a reason for a new trial, such motion shall carry such decision and exception forward to the time of ruling on such motion, and time may be then given by the court within which to reduce such exception to writing."" This provision must not be understood as changing the time when the exception must be taken. The exception must still be taken at the time the evidence is offered, and the bill of exceptions must so show ; but the leave to reduce the exception to writing may now be given at a subsequent term, if the motion for a new trial be then ruled upon. It has been held sufficient, if the bill of exceptions shows that the (h) Gebhurt c. Burkett, 57 Ind. 878; 273; Dickerson ?;. Turner, 15 Ind. 4; Carter v. Pomeroy, 30 Ind. 438. McKinney r. Springer, 6 Ind. 453; (i) Ante, 869, and authorities cited. Stump v. Fraley, 7 Ind. 679; Wilson (j) Ante, 870, and authorities cited, v. Wolfen, 8 Ind. 398; Jolly v. The (k) Jonec v. Van Fatten, 3 Ind. Terre Haute Drawbridge Co , 9 Ind. 107; Crabs v. Mickle, 5 Ind. 145; 41w; Buskirk's Prac. 144, and cases Darnell v. Hazlett, 11 Ind. 494. cited. (1) R. S. 1881, 626; Coan . Grimes, (m) Rhyan v. Dunnigan, 76Ind. 178. 63 Ind. LM ; (Jriffin ,-. Pate, 63 Ind. (n) R. S. 1881, g tJL'6. XXI.] NEW TRIAL VEXIRE DE NOVO. G05 exceptitjn was taken " at the proper time," on the ground that it is equivalent to a statement that it was taken " at the time." The court may extend the time in which to reduce an exception to writing, but can not allow time in which to take such exception. p When the error complained of is in the admission of evidence, the grounds of objection thereto must be shown in the bill of exceptions, and it must appear that the objections were made at the time. q The objection must be specifically stated at the time. A general objection that the evidence is incompetent is insufficient. 1 " Where the evidence is excluded, the grounds of objection need not be shown. 9 There are some cases that seem to recognize a different rule, but it is not directly decided.* The bill of exceptions must show what was expected to be proved by the witness, and that it was stated to the court at the time. It is not sufficient to show that a certain question was asked, and, upon ob- jection, the witness was not allowed to answer. It must be shown what answer was expected, as the answer of the witness, if allowed, might have been unimportant or immaterial, or he may not have been able to answer the question." . Where immaterial evidence has been allowed to go to the jury, it (o) Oandall v. The First National (r) Stanley v. Sutherland, o^Ind. Bank of Auburn, 61 Ind. 349. 339, 352 ; Betson v. The State, 47 Ind. (p) Coan v. Grimes, 63 Ind. 21. 54. (q) Russell v. Branham, 8 Blkf. 277 ; (s) Abshire r. Williams, 76 Ind. 97. Sinclair v. Roush, 14 Ind. 450; Denny (t) The O. & M. R. W. Co. v. Row- v. The North-western Christian Uni- land, 51 Ind. 285; The Baltimore, etc., versity, 16 Ind. 220; Swails v. Cover- R. R. Co. v. Lansing, 52 Ind. 229. dill, 21 Ind. 271; Mugg v. Graves, 22 (u) The Toledo, etc., R. W. Co >-. Ind. 236; Bli^singame v. Blasingame, Goddard. 25 Ind. 185; Lewis v. Lewi.*, 24 Ind. 86; Ammerman r. Crosby, 26 30 Ind. 257; The Baltimore, etc., It. Ind. 451; Schenck v. Butsch, 32 Ind. R. Co. v. Lansing, 52 Ind. 229; Adams 338; Clem v. Martin, 34 Ind. 341; v. Cosby, 48 Ind. 153; Watt v. De Harvey v. The State, 40 Ind. 516; Haven, 55 Ind. 128; Mitchell v. Cham- Leffler r. Rice, 44 Ind. 100; Trogden bers, 55 Ind. 289; The O & M. R. W. ?. Deckard, 45 Ind. 572; Blizzard r. Co. r. Rowland, 51 Ind. 285 ; Tedrowe Hays, 46 Ind. 166; Betson v. The v. Esher, 56 Ind. 443; Robinson Ma State. 47 Ind. 54; Smith r. Worland, chine Works r. Chandler, 56 Ind. 575: 50 Ind. 360; Holesapple v. Fawbush, Ferguson v. Hi rsch, 54 Ind. 337 ; Str.- 51 Ind. 494; The First National Bank ley v. Sutherland, 54 Ind. 339; The of Cambridge City v. Colter, 61 Ind. First Nat. Bank of Cambridge City v. 153; Abshire r. Williams, 76 Ind. 97 ; Colter, 61 Ind. 153. Clay r. Clark, 76 Ind. 161. 606 NEW TRIAL VENIRE DE NOVO. [CHAP. will be presumed, on appeal, to have worked an injury, unless the contrary clearly appears/ In an earlier case, it was held that it must affirmatively appear that the evidence might have prejudiced the rights of the party. w It is held that a judgment ought not to be reversed on " evidence which is merely irrelevant." x Where evidence has been excluded, but before the trial the court reverses the ruling, and informs the party that the evidence will be admitted, there is no available error. y So, where the court has ad*- mitted improper evidence, but the jury are instructed to disregard it. z 930. Giving or refusing to give instructions. The various questions growing out of the instructions have been fully considered in the chapter on Trials.* Any error committed in giving, refusing, or modifying instructions must be assigned as a cause for a new trial, and can not be assigned as error in the supreme court. b The mistake of assigning such causes, independently, as error, is quite common. Numerous authorities might be cited on this point, holding that such an assignment raises no question ; but as the cases have uniformly held the same way, it is unnecessary. The degree of certainty required in assigning this cause in the mo- tion for a new 'trial has been considered, c as well as the proper manner of excepting and reserving, the exception to the action of the court thereon. d 931. Questions of law reserved. The statute provides for re- serving questions of law on the trial of the cause for the decision of the supreme court. 6 Where this is done, errors of law occurring at the trial must be pre- sented by a motion for a new trial, as in other cases. f (v) Morgan v. The State. 31 Ind. v. Kepler, 16 Ind. 290; Wishmier v. 193, 201; The Bellefontaine, etc., K. Bebymer, 30 Ind. 102; Buskirk's Prac. W. Co. v. Hunter, 33 Ind. 335; Thomp- 289. son /. Wilson, 34 Ind. 94; King v. (a) Ante, 781 et seq. The Enterprise Insurance Co., 45 Ind. (b) Hampson v. Fall, 64 Ind. 382;. 43; Buskirk's Prac. 285. Eckleman v. Miller, 57 Ind. 88; Rea- (w) McDermitt v. Hubanks, 25 Ind. gun v. Hadley, 57 Ind. 509; Freeze v. 232. De Puy, 57 Ind. 188. (x) Dawson v. Hemphill, 50 Ind. (c) Ante, 869. 422. (d) Ante, 795, 796. (y) Gehhart v. Burkett, 57 Ind. 378. (e) K. S. 1881, 630. (z) Gebhart v. Burkett, 57 Ind. 378; (f ) Garver v. Daubenspeck, 22 Ind. Joy v. The State, 14 Ind. 139 ; Zehner 238 ; Starner v. The btate, 61 Ind. 360;. XXI.] NEW TRIAL VENIRE DE NOVO. 607 < The error complained of must be pointed out with reasonable cer- tainty in the court below. It is held that "it must be so presented below that that court could cure or avoid the error complained of by doing what the party moves it to do." g If the error is ground for a new trial, it must be pointed out with the same certainty required in other cases. ERRORS NOT GROUND FOR NEW TRIAL. 932. Enumerated. The mistake of assigning, as a reason for a new trial, errors that can only be presented on appeal by an assignment of error, is one that is frequently made. Unless the error is one falling within some of the statutory grounds for a new trial nothing is gained by assigning it as a reason therefor. To make such errors available exception must be taken, in the court below, at the time, and the ruling presented to the supreme court by assignment of error. For the purpose of easy reference, some of the errors that have been held not to be ground for a new trial are here set out. No doubt some of them will be overlooked : 1. Rulings on demurrers to, or the sufficiency of pleadings. 11 2. On motion to strike out pleadings. 1 3. On motion for judgment on special findings. j 4. That the court erred in its conclusions of law on special findings of facts. k 5. That the special findings are inconsistent with the general verdict or with eacli other. 1 In Brickley v. Weghorn there is a mistake in the syllabus that makes the decision appear to be the other way. 6. Sufficiency of affidavit in attachment. 1 " Rousseau v. Corey, 62 Ind. 250; Bus- (j) Horn v. Eberhart, 17 Ind. 118. kirk's Prac. 71. But see on this point (k) The City of Logansport v. The State v. Swarts, 9 Ind. 221. Wright, 25 Ind. 512; Peden's Adm'r (g) Love v. Carpenter, 30 Ind. v. King, 30 Ind. 181 ; Eoberts v. Smith, 284. 34 Ind. 550. (h) Milliken v. Ham, 36 Ind. 166; (1) Adamson v. Rose, 30 Ind. 380; Denman r. MoMahin, 37 Ind. 241; Stockton v. Stockton, 40 Ind. 225; Daubenspeck v. Daubenspeck, 44 Ind. Tritlipo v. Lacy, 55 Ind. 287 ; The 320; Beeson W.Howard, 44 Ind. 413; Fishback, etc.. Gravel Road Co. v. Wil- Sim v. Hurst, 44 Ind. 579. son, 31 Ind. 371 ; Grand Rapids, etc., (i) Fleming v. Dorst, 18 Ind. 493; R. R. Co. v. Horn, 41 Ind. 479; Brick- Milliken v. Ham, 36 Ind. 166; Shafer ley v. Weghorn, 71 Ind 497; Byram v. Bronenberg, 42 Ind. 89; Sim v. v. Galbraith, 75 Ind. 134. Hurst, 44 Ind. 579. (m) McKee v. Anderson, 35 Ind. 17 608 NEW TRIAL VENIRE DK NOVO. [CHAP. 7. Error m form of judgment." 8. Ruling on interrogatories to party. 9. Error in entering judgment. p 10. Ruling on motion to dismiss the action. q 11. On motion to set off one judgment against another/ 12. In an agreed case. 3 It was held otherwise in an earlier case.' It is held that where there is no affidavit, as required by the statute, but simply an agreement as to the facts, a new trial is necessary." Theiv is a later case seemingly in conflict with this ruling, but the que-tiou is disposed of in one sentence of an opinion that was evidently not well considered. v It is believed the earlier case states the rule correctly. 13. The refusal to allow a defendant a separate trial in a criminal cause. w 14. An omission in the verdict. 1 15. Motion to remand cause to justice of the peace. y 16. Rulings on objections filed to report of commissioners in parti tion proceedings. 2 HOW MOTION FOR NEW TRIAL WAIVED. 933. By moving in arrest of judgment. We have seen that a motion for a new trial may be made after judgment. This can not be done where there has been a motion in arrest of judgment. By moving in arrest a motion for a new trial is waived." (n) Beeson v. Howard, 44 Ind. 413. (x) Bell v. The State. 42 Ind. 335: (o) Reed v. Spayde, 50 Ind. 394; post, \\ 970, 071. ante, 882. (y) Tibbetts ?-. O'Connell, 66 Ind. (p) Johnson v. Vutrick, 14 Ind. 216. 171. (q) Bray v. Black, 57 Ind. 417 ; Ty- (z) Clark v. Stephenson, 73 Ind. ler v. Bowlus, 54 Ind. 333; Vawter v. 489. (iilliland, 55 Ind. 278. (a) Mason ?-. Palmerton, 2 Ind. 117; (r) McAlister v. Willey, 60 Ind. 195. Rogers v. Maxwell, 4 Ind. 243; Bep- (s) Fisher v. Purdue, 48 Ind. 323; ley >. The State, 4 Ind. 264; Sherry v. The State v. The Board, etc., of New- Ewell, 4 Ind. 652; Anthony v. Lewis, ton county, 66 Ind. 216. 8 Ind. 3o9; Hord v. The Corporation (t) McDonald e. Strader, 10 Ind. of Noblesville, 6 Ind. 55; Van Pelt v. 171. Corwine, 6 Ind. 363; McKinnoy r. (u) Manchester v. Dodge, 57 Ind. Springer, 6 Ind. 453; Doe v. Clark, 6 684. Ind. 466; The Marion, etc., R. R. Co. (v) Martin w, Martin, 74 Ind. 207. v. Lomax, 7 Ind. 400; Bates v. Rei*- (w) Trisler v. The State, 39 Ind kenhiHH7.fr, Ind. 178; Smith?' For- 473. ter. 5 li -i. 429. XXI.] NEW TRIAL VENIRE DE NOVO. 609 If the cause for a new trial is discovered after the motion m arrest it is not waived. b 934. By failing to except at the time. When the new trial is asked on the ground of emmeous rulings or orders of the court they must be excepted to at the time or they are waived. The failure to except at the proper time can not be remedied by a motion for a new trial. There must be both an exception at the time and a motion for a new trial, to present the question. By failing to except, the right to move for a new trial for such cause is waived. This rule does not apply to such causes as excessive damages, ver- dict not sustained by sufficient evidence, and the like, where the first opportunity to present the question is upon filing the motion. . 935. Not waived by motion for a venire de novo. By moving for a venire de novo a party does not waive his right to move for a new trial. The motion for a new venire should precede the mo- tion for a new trial. d 936. Nor by motion for judgment on special findings. A motion for judgment on the special findings of a jury in answer to in- terrogatories does not waive the motion for a new trial." Nor the fact that special findings are made at the request of a party. f Nor by demurring to the evidence. 5 But the right to move for a new trial where there is a demurrer to the evidence is confined to the assessment of damages. Objections to the admissibility or exclusion of evidence are waived by the demurrer. 1 ' By excepting to the conclusions of law on the special findings of the court, a motion for a new trial is not waived.' ERROR IN GRANTING OR OVERRULING THE MOTION. 937. New trial granted. Where a new trial is granted the ac- (b) Mason v. Palmerston,2 Ind. 117; (f) Nichols v. The State, 65 Ind. Billiard New Trials, 2d ed. 37, 28. 512. (c) Ante, 929; post. 939. (g) Strough v. Gear, 48 Ind. 100; (d) Jenkins v. Parkhill, 25 Ind. Lindley v. Kelley, 42 Ind. 294. 473. (h) Ante, 550; Miller v. Porter, (e) The Indianapolis, etc., R. R. Co. 71 Ind. 521. r. McCaffrey, 62 Ind. 552. (i) Ante, 810; Robinson v. Snyder, 74 Ind. 110. 39 610 NEW TRIAL VENIRE DE XOVO. [CHAP. tion of the court will not be disturbed, except where a clear abuse of discretion is shown .J But where the new trial is granted upon insufficient grounds, and it clearly appears that manifest injustice has been done thereby, the cause will be reversed. k 938. New trial refused. The questions arising on the overruling of a motion for a new trial have been sufficiently considered in treating of the several causes for a new trial. The rule is not as strict on ap- peal as it is where the motion has been sustained and a new trial granted. But in either case, as a rule, it must appear that an injury has been done the complaining party. If the correct result has been reached, and a second trial will not benefit the party, the action of the lower court will be sustained. 939. Exception must be taken at the time. I have shown that the ruling of the court assigned as a cause for a new trial must be excepted to at the time. 1 Such exceptions avail the party nothing unless there is also an exception taken to the ruling on the motion for a new trial, and this exception must be taken at the time the motion is ruled upon. The court has no power to extend the time. m When the motion is properly made and exception taken to the rul- ing thereon, if overruled, all of the reasons assigned therein are pre- sented in the supreme court by the one assignment that " the court erred in overriding the motion for a new trial." It is not only unnec- essary, but improper, to assign any of such causes as error. The only way by which the question can be presented is by assigning error on the ruling on the motion. 11 It will be seen by these authorities that five things are necessary to present any question in the supreme court, on errors that are made grounds for a new trial. 1. The ruling must be excepted to at the time. 2. There must be a motion for a new trial specifying the cause. 3. There must be an exception to the ruling on the motion. (j) Powell v. Grimes, 8 Ind. 25'2;- (1) Ante, 3 929, 934. Cronk v. Cole, 10 Ind. 485; Hill v. (m) Coan v. Grimes, 63 Ind. 21; Goode, 18 Ind. 207; Leary v. Ebert, ante, 929. 72 Ind. 418; Leppar v. Enderton, 9 (n) The Bellefontaine E. K. Co. v. Ind. 353; Bust v. Conn, 12 Ind. 257; Reed, 33 Ind. 476 ; Caldwell v. Asbury, Booker v. Parsley, 72 Ind. 497; Houk 29 Ind. 451; Herrick v. Bunting, 29 v. Deitz, 3 Ind. 385. Ind. 467; Cole v. Burriss, 38 Ind. (k) Jones v. Cooprider, 1 Blkf. 47; 168. Learv " Ebert, 72 Ind. 418. XXI.] NEW TRIAL VENIRE DE NOVO. 611 4. There must be a bill of exceptions showing the existence of the cause and the exception thereto at the time. 5. There must be an assignment of error in the supreme court that the court below erred in overruling the motion for a new trial. All of these are absolutely necessary to present any question on appeal. 940. When appeal taken from ruling on the motion. Whether the motion is sustained or overruled an appeal can not be taken until there is a final judgment. Where a new trial is granted on the first trial, the ruling can not be appealed from until there is judgment on the second hearing. The question is properly presented with questions arising on the second trial. Whether the new trial is granted or refused, the question is presented on appeal by an assign- ment of error on that ruling. p Where the appeal is taken by the opposite party, the granting of the new trial on the former hearing may be assigned by the appellee as a cross-error.* 1 941. Default ; can be no new trial. To entitle either party to a new trial, there must of necessity have been a trial of the cause/ It has been held, therefore, that where judgment has been rendered against a defendant by default, he can not properly move for a new trial, as there has been no trial. 3 But where, after a default, the defendant appears and contests the amount of damages, he may move for a new trial on the ground of excessive damages, or that the amount of recovery is too large. 1 942. Effect of consent of parties. The parties may consent to the granting of a new trial, and the court may sustain the motion upon such consent being given ; but where both parties are willing that a new trial may be granted, the court may still overrule the motion, and it will not, for that reason alone, be error. u (o) House v. Wright, 22 Ind. 383 ; (r) Webster v. Maiden, 41 Ind. 124, White v. Harvey, 23 Ind. 55. 130. (p) Cronk v. Cole, 10 Ind. 485; (s) Fisk v. Baker, 47 Ind. 534. Cook v. Otto, 13 Ind. 380; Sanford v. (t) Bash v. Van Osdol, 75 Ind. 186; Tucker, 54 Ind. 219. Briggs v. Sneghan, 45 Ind. 14; ante, (q) Hill v. Newman, 47 Ind. 187. \ 458. (u) Wright v. Miller, 63 Ind. 220. 612 NEW TRIAL VENIRE DE KOVO. [CHAP. TERMS OF GRANTING NEW TRIAL. 943. Costs. The granting of a new trial is very much within the discretion of the court, subject to review on appeal. So the statute leaves the terms upon which relief may be granted very much to the discretion of the court. It provides: "And the court, in granting new trials, may allow the same at the costs of the party applying therefor, or on the costs abiding the event of the. suit, or a portion of the costs, as the justice and equity of the case may re- quire, taking into consideration the causes which may make such new trial necessary/ Where the new trial is rendered necessary by some error of the court, or other cause unconnected with any negligence of the losing party, the costs should be left to abide the event of the suit. w The order for the payment of costs should be made at the time the motion is ruled upon, and must relate to costs accrued up to that time, and not to costs that may be made thereafter. 1 944. Can not be granted on condition. While the terms of granting the new trial are left to the discretion of the court, so far as the costs are concerned, the court can not grant the relief on the con- dition that certain costs are paid, or any other condition. y It was held otherwise in some of the earlier cases. 2 945. Costs can not be recovered back. Costs paid on grant- ing a new trial can not afterwards be recovered back, although the party paying them may be successful on a second trial. 3 946. Effect of granting a new trial. The effect of granting a new trial is to vacate the judgment rendered in the cause, and leaves the action pending for trial as if no trial had taken place. b It opens up the whole case, and implies a re-examination of all of the issues. (v) R. S. 1881, 559, sub. 8. Sunman v. Brewin, 52 Ind. 140; ante, (w) Fisher v. Bridges, 4 Blkf. 518. 465. (x) Swingle v. The Bank of the (z) Moberly v. Davar, 5 Blkf. 409; State, 41 Ind. 423. Chambers v. Bass, 18 Ind. 3; Watts v. (y) Heath v. Shelby, 1 Blkf. 228; Green, 30 Ind. 98. De Ford v. Urbain, 48 Ind. 219 ; Am- (a) Tarpy v. Outohfield, 38 Ind. 58. merman v. Gallimore, 50 Ind. 131; (b) Ricketts v. Kitchens, 34 Ind. 348. (c) Peed v. Brenneman, 72 Ind. 288. XXI. J NEW TRIAL VENIRE DE NOVO. Glo AFFIDAVITS IN SUPPORT OF MOTION. 947. Proof, how made. We have seen that certain reasons for a new trial must be supported by evidence.* 1 This is usually done by affidavits, but the parties may properly introduce parol testimony or other evidence that would be competent on the trial of a cause. Where the proof is by affidavit, the adverse party should be allowed to inspect the same before the motion is called up for hearing. 6 The affidavit should clearly state the cause complained of, and, if miscon- duct of a juror is charged, the particular juror should be clearly identified/ Counter-affidavits may be made by the opposite party. 8 The affidavits must be positive and certain. It is not sufficient to charge the misconduct of a juror or other cause " as the affiant is in- formed and believes." 1 * Where surprise is charged, the affidavit must be made by the party or his attorney. 1 Time should be given the parties to prepare the necessary affidavits, but where the court refuses to give time it must be shown by affida- vit that if time had been given, a good showing by affidavit, or other- wise could have been made, or the refusal will not be available error on appeal. j 948. Witness compelled to make affidavit. It is no excuse for the failure to file the affidavit of the witness that he has refused to mak<, it. Upon the proper showing the witness will be compelled to make affidavit of the facts within his knowledge. k 949. Juror's affidavit. It is the well-settled rule that a juror's affidavit can not be received to impeach a verdict in which he has joined. 1 . ^ Nor can his statements, proved by other persons, be used for such purpose. 01 (d) Ante, 871, 898, 925. (1) Sinclair v. Koush, 14 Ind. 450; (e) Hubble v. Osborn, 31 Ind. 249. Bradford v. The State, 15 Ind. 347; (f ) Achey v. The State, 64 Ind. 56. McCray v. Stewart, 16 Ind. 377; 'flaun (g) Whistler v. Teague, 66 Ind. 565. v. Wilson, 28 Ind. 296; Withers r. Fis- (h) Toliver v. Moody, 39 Ind. 148; cus, 40 Ind. 131; Hughes v. Listner, Stanley v. Sutherland, 54 Ind. 339. 23 Ind. 396 ; Stanley v. Sutherland, 54 (i) Brownlee v. Kennip, 41 Ind. Ind. 339. 216. (m) McCray v. Stewart, 16 Ind (j) Davis v. Hardy, 76 Ind. 272. 377. (k) Huston v. Vail, 51 Ind. 299; ante, 925. 614 NEW TEIAL VENIRE DE XOVO. [CHAP. But his affidavit may be taken in support of the verdict." 950. Determined by the weight of the evidence. Whether a party is entitled to a new trial or not, -where the reasons must be supported by proof, presents a question of fact to be determined by the court according to the weight of the evidence, and, on appeal, if the evidence is conflicting, the ruling of the court will not be disturbed where there is any evidence to support it. NUMBER OF NEW TRIALS. 951. Unlimited. Under the code of 1852 it was provided that not more than two new trials should be granted to the same party in the same cause. p Under this statute there are many decided cases in which the con- struction to be given the section is considered. It was uniformly held that there could be but two new trials granted by the trial court/ The present code contains no limitation on the number of new trials that may be granted to a party, this clause being omitted in the pres- ent revision. 3 Therefore a party may continue to move for a new trial, and is enti- tled to it as long as any of the statutory causes therefor exist. COMPLAINT FOR NEW TRIAL. 952. The statute. " Where causes for new trial are discovered after the term at which the verdict or decision was rendered, the appli- cation may be made by a complaint filed with the clerk, not later than the second term after the discovery, on which a summons shall issue as on other complaints, requiring the adverse party to appear and answer. The application shall stand for hearing at the term to which the sum- mons is returned executed, and shall be summarily decided by the court upon the evidence produced by the parties. But no such appli- (n) Bradford v. The State, 15 Ind. (p) 2 K. S. 1876, p. 182, .352, sub. 8. 347; fiaun v. Wilson, 28 Ind. 296; (r) Huberts v. Kobeson, 22 Ind. 456; Harding v. Whitney, 40 Ind. 379. Charles v. Malott, 65 Ind. 184; Judah (o) Harding v. Whitney, 40 Ind. v. The Trustees of Yincennes Uni- 379; Holloway v. The State, 53 Ind. versity, 23 Ind. 272; Carmichael r. 554; McCully v. The State, 62 Ind. Geary, 27 Ind. 362; Shirts r. Irons, 47 428; Achey v. The State, 64 Ind. 56; Ind. 445; Headrick v. Wisehart, 57 Whistler v. Teague, 6G Ind. 565; De Ind. 129. Priest v. The State, 68 Ind. 569. (s) K. S. 1881, 559, sub. 8. XXI.] NEW TRIAL VENIRE DE NOVO. 615 cation shall be made more than one year after the final judgment was rendered." ' 953. When must be filed. The time when the complaint must be filed is fixed by the statute. The limitation is twofold : 1. It must not be later than the second term after the discovery. 11 2. It must be within one year after the final judgment/ Under these two limitations, if the discovery of the new evidence is made so that the second term thereafter is less than one year from the final judgment, the complaint must, nevertheless, be filed in time for such second term or it is too late. If the discovery is made at a time when the second term thereafter would be later than one year, the ap- plication will be too late unless it is filed long enough before the term to be within the year. If there is no intervening term after the dis- covery the complaint must be filed within the year. If dis'covery is not made within a year from the final iudginent there can be no relief under this section. 954. The pleadings. It may well be doubted whether any plead- ings are contemplated by the statute, as it is provided that the ques- tions presented "shall be summarily decided by the court upon the evidence produced by the parties."* But it is firmly settled by the decided cases that the application can only be presented by a com plaint. x That there may be a demurrer thereto, y and that an issue must be formed by answer. 2 In the case of Sanders v. Loy, the court say: "An issue must be formed on ilie complaint, and the issues thus formed must be tried by the court." 955. The complaint. The complaint must show: 1. That the cause for a new trial existed at the time of the trial. 8 2. That it has been discovered since the term. b Where there are (t) R. S. 1881, 503. tion v. Reynolds, 61 Ind. 104; Hum- (u) Webster T. Maiden, 41 Ind. 124. phreys v. Klick, 49 Ind. 189. (v) Webster v. Maiden, 41 Ind. 124; (z) Sanders v. Loy, 45 Ind. 229. Roush v. Layton, 51 Ind. 106. (a) Stanley v. Peoples, 13 Ind. 232. (w) R. S. 1881, 563. (b) Tillison v. Crim, 22 Ind. 357; (x) Stanley v. Peeples, 13 Ind. 232; Schigley v. Snyder, 45 Ind. 543; Car- Sanders v. Loy, 45 Ind. 229; Hannah ver v. Compton, 51 Ind. 451; The v. Dorrell, 73 Ind. 465; Freeman v. Trustees of the Indiana, etc., Associ- Bowman, 25 Ind. 236. ation v. Reynolds, 61 Ind. 104; Han- (y) Sanders v. Loy, 45 Ind. 229; nah v. Dorrell, 73 Ind. 465. The Trustees of Indiana, etc., Assot-ia- 616 NEW TRIAL VEXIBE DE XOVO. [CHAP. several parties it must be shown that the cause for a new trial was un- known to all of them. c 3. That it could not have been discovered before the close of the term. d 4. That due diligence was used to discover it. e It is not sufficient to allege generally that the plaintiff " used due diligence to ascertain, be- fore trial," or before the close of the terra, the cause set out. The facts constituting the diligence must be specifically stated/ 5. The cause alleged must be such as would have authorized a new trial during the term.e 6. If for newly discovered evidence, a statement of the issues on the former trial, but not a full transcript. 11 7. The evidence given on the former trial, as well as that discov- ered, must be fully set out. 1 This rule does not apply where the com- plaint aseigns other reasons.J 8. That the discovered evidence is not cumulative or impeaching. k 9. The complaint must be verified. 1 ^!) 956. Parties. All of the parties to the original action must be made parties to the complaint for a new trial." 1 If any of the parties against whom judgment has been rendered de- cline to join in the complaint, they must be made defendants. 957. Demurrer. A demurrer to the complaint fora new trial, which contains what purports to be the evidence on the former trial and that discovered, admits, for the purposes of the demurrer, that the evidence is fully and properly set out. n (c) Berry v. Daily, 30 Ind. 183. 236; Glidewell v. Daggy, 21 In.l. 9:>; (d) Bartholomew v. Loy, 44 Ind. Bartholomew v. Loy, 44 Ind. 393; 393; Carver v. Compton, 51 Ind. 451 ; Roush v. Layton, 51 Ind. 106; Carver (e) Rickart v. Davis, 42 Ind. 164; v. Compton, 51 Ind. 451 ; The Trustees Bartholomew v. Loy, 44 Ind. 393; of the Indiana, etc., Association v. Nordman v. Stough, 50 Ind. 280; Cox Reynolds, 61 Ind. 104; Huntington v. v. Harvey, 53 Ind. 174. Drake, 24 Ind. 347. (f) Reno v. Robertson, 48 Ind. 106; ( j) House v. Wright, 22 Ind. 383. Nordman v. Stough, 50 Ind. 280. (k) Schigley v. Snyder, 45 Ind. 543 ; (g) Stanley ?-. Peeples, 13 Ind. 232; Cox v. Harvey, 53 Ind. 174; Hum- Allen v. Gillum, 16 Ind. 234; Glide- phreys r. Klick, 49 Ind. 189; Houston well v. Daggy, 21 Ind. 95. o. Brunei-, 39 Ind. 376. (h) McKee v. McDonald, 17 Ind. (1) Allen v. Gillum, 16 Ind. 234; 518; Glidewell v. Daggy, 21 Ind. 95; Cox v. Hitchings. 21 Intl. 219. Rickart v. Davis, 42 Ind. 164; Carver (m) Carver v. Compton, 51 Ind. 451. c. Compton, 51 Ind. 451. (n) Sar.ders v. Loy, 45 Ind. 229; (i) Freeman v: Bowman. 25 Tnd. Humphreys ?. Klick, 49 Ind. 189; The (1) Form of complaint, Vol. 3, p. 251. XXI.] M:\V TRIAL VENIRE DE NOVO. 617 This is not so where the complaint shows on its face that it does not contain all of the evidence. The demurrer in this class of cases is governed by the same rules as in ordinary cases. 958. The trial. There is nothing peculiar about the practice on the trial of this class of cases. The statute is so indefinite that it has been a matter of doubt whether issues should be formed or whether the complaint should be treated merely as a motion, and the proof made by affidavits, as in case where the motion is filed during the term. The authorities, as I have shown, are to the effect. that the applica- tion must be treated as an independent proceeding, and issues formed as in ordinary cases. p It is equally well settled that the proper manner of making the proof is by parol ev-ideuce, and not by affidavit. q In Sanders v. Loy the court say : " The application, when made after judgment and at a subsequent term of the court, must, as we have seen, be regarded as an independent proceeding, and must set out the issues upon the former trial and the evidence given on such trial, with the newly discovered evidence. An issue must be formed on the com- plaint, and the issue thus formed must be tried by the court. Upon such trial, the.plaintiff should introduce in evidence the record of the former trial, prove what the evidence was upon such trial, the newly discovered evidence, and show that it had been discovered since the term, when the case was formerly tried, and what diligence he had used to discover the evidence before the former trial." The plaintiff is required to prove the allegations of his complaint, as in other cases. The defendant may introduce any legitimate evidence to disprove these allegations, such as that the evidence on the former trial was not as it is alleged to be; that due diligence was not used; that the plaintiff knew of the evidence claimed to have been newly discovered, and the like. Some of the cases seem to recognize the right of the parties to make their proof by affidavit/ But this is clearly not the better practice. If the proceeding is such that parol evidence is proper, and issues are regularly formed, af- fidavits should not be received. 9 The parties are not entitled to a jury trial. 1 Trustees of the Indiana, etc., Associa- (q) Allen v. Gillum, 16 Ind. 234; tion v. Reynolds, 61 Ind. 104. Sanders v. Loy, 45 Ind. 229. (o) The Trustees of the Indiana, etc., (r) Pattison v. Wilson, 22 Ind. 358; Association v: Reynolds. 61 Ind. 104. Glidewell v. Dagsy, 21 Ind. 95. (p) Ante, 954. (s) Houston v. Bruner, 59 Ind. 25. (t) Houston v. Bruner, 59 Ind. 25. 618 MEW TRIAL VEX1BE DE NOVO. [CHAP. 959. Appeal. Notwithstanding the application is declared to be an independent proceeding, it is held that the judgment of the court therein is merely interlocutory, and no appeal can be taken therefrom wheTe the new trial is granted." It is otherwise where the new trial is refused, as the judgment is final. Where an appeal is taken from a judgment on demurrer to the com- plaint, none of the evidence need be taken up by bill of exceptions. The evidence on the former trial and that discovered is a part of the complaint. v But to present any question growing out of the evidence there must be a bill of exceptions, containing all of the evidence given at the trial of the application, which necessarily includes all of the ev- idence given on the original trial and the newly discovered evidence, as the same is proved in the trial of the application. w The cause will not be reversed, where a new tria'l has been refused, unless it appears that a second trial would probably bring about a dif- ferent result. 1 NEW TRIAL AS OF RIGHT. 960. The statute. " The court rendering the judgment on ap- plication made within one year thereafter by the party against whom judgment is rendered, his heirs, assigns, or representativ.es, and on the applicant giving an undertaking, with surety, to be approved by the court or clerk, that he will pay all costs and damages which shall lie recovered against him in the action, shall vacate the judgment and grant a new trial. The court shall grant but one new trial under the provisions of this section." y This statute authorizes but one new trial in the same cause. 2 961. In what causes may be granted. The section is not, in terms, limited to any class of actions, but it is a part of the act relating to actions in ejectment, and applies to such actions only. It has been extended, however, to actions to quiet title to real estate." It has been held not to be applicable in the following actions : (u) House v. Wright, 22 Ind. 383; (z) Ewing v. Gray, 12 Ind. 64. White v. Harvey, 23 Ind 55. (a) Slminan v. Gavin, 15 Ind. 93; (v) Sanders v. Loy, 45 Ind. 229, 234. Adams v. Wilson, 60 Ind. 560; Shu- (w) Sanders v. Loy, 45 Ind. 229. craft ??. Davidson, 19 Ind. 98; Zimmer- (x) Freeman v. Bowman, 25 Ind. man?). Marchland, 23 Ind. 474; Moor 236; Humphreys v. Klick, 49 Ind. v. Seaton, 31 Ind. 11 ; Hunter v. Chris- 189. man, 70 Ind. 439. (y) R. S. 1881, 1 1064. XXI.] XKW TUIAL VENIKE DE XOVO. 619 1. For specific performance. b 2. Foreclosure of mortgages. 3. In actions between landlord and tenant for possession. 4 4. Partition proceedings. 6 962. The motion. The statute does not provide what steps shall be taken to procure the new trial, except that the costs shall be se- cured by an undertaking. It was first held that no written motion need be filed, though it was intimated that it would be the better practice/ It has since been held that the application must be made by a writ- ten motion or supplemental complaint. 8 As the application is regarded as a part of the original cause, and no summons is necessary, it should be by motion, which should show the rendition of the judgment in the cause, the time when rendered, that the proper undertaking has been given and approved by the court or the clerk, and that a new trial is demanded as of right and without cause. h It is not necessary to set out the issues on the former trial.' The court can not grant a new trial except upon the proper applica- tion. Thus it is held that, where the motion is for causes assigned, the court can not grant a new trial as of right.-" But, where the new trial is granted without a written motion, and the adverse party appears to the original action thereafter, and con- tests the same on its merits, the want of a written motion is waived. k The application can not be made until after judgment. 1 963. Undertaking must be given and new trial granted within one year. The right to a new trial under this section de- pends solely upon the giving of the undertaking for- costs within one year. The statute requiring it is imperative. The code of 1852 re- quired the actual payment of the costs. 1 " The giving of the undertaking takes the place of the payment of all f (b) Allen v. Davidson, 16 Ind. 416; (h) Crews v. Ross, 44 Ind. 481. But "Walker v. Cox, 25 Ind. 271. see Heberdv. Wines, 105 Ind. 237. (c) Jenkins v. Corwin, 55 Ind. 21. (i) Shaman v. Gavin, 15 Ind. 93. (d) Over v. Moss, 41 Ind. 463. (j) Koile . Ellis, 16 Ind. 301. (e) Harness v. Harness, 49 Ind. 384; (k) Marsh v. Elliot, 51 Ind. 547. McFarran v. MwFarran, 69 Ind. 29. (1) Whitlock v. Vancleave, 39 Ind. (f) Zimmerman r. Marchland, 23 oil. Ind. 474. (m) Zimmerman v. Marchland, 23 (g) Crews v. Ross, 44 Ind. 481. But Ind. 474; Whitlock v. Vancleave. 39 seethe later case of The Physio-Med. Ind. 511; Blizzards. Blizzard, 40 Ind. Col. v. Wilkinson, 89 Ind. 26, where it 344; Montgomery v. Hays, 44 Ind. is again held that a written motion is 433; Golden v. Snellen, 54 Ind. 282. not necessary. Also Vol. 3, p. 435. 620 NEW TRIAL VENIRE DE NOVO. [CHAP. costs under the old statute, and an order granting the new trial with- out the undertaking is absolutely void. Upon a showing that it was not given at the time the order was made, the cause should be stricken from the docket." The court has no power to make the order on condition that the costs are paid thereafter. Either party has, by the express terms of the statute, one year in which to give the undertaking and apply for and obtain a new trial. The court has no power to limit the time thus given. p It was held under the former statute that, where the costs were paid and the application made within the year, the failure of the court to make the order could not affect the rights of the party, and the order could be made after the year had expired. q But this case has been expressly overruled on this point, and it was firmly settled that the costs must be paid, the application made, and the order granting the new trial actually made within the year/ The objection that the undertaking has not been given must be made at the proper time, or it is waived. If, after being notified, the ad- verse party appears to the action and contests the same on the merits, without making any objection to the validity of the order granting the new trial, it is waived. 8 964. The undertaking. Prior to the present revision of the code no undertaking was required, but all costs must be paid up to the time of making the application.* The statute now provides that the applicant shall give an undertak- ing, with surety, to be approved by the court or clerk, that he will pay all costs and damages which shall be recovered against him in the ac- tion." This undertaking includes the costs of the former action, as well as those to accrue, in case they are adjudged against him.(l) 965. The notice. It is not necessary that any notice shall be given of the application/ (n) Golden v. Snellen, 54 Ind. 282. Ferger v. Wesler, 85 Ind. 53; Hays v. (0) Crews v. Ross, 44 Ind. 481 ; Falls May, 35 Ind. 427. v. Hawthorn, 30 Ind. 444. (s) Vernia r. Lawson, 54 Ind. 485. (p) Falls v. Hawthorn, 30 Ind. 414; (t) 2 R. S. 1876, p. 252, 601. Whitlock v. Vancleavc, 39 Ind. 511 ; (u) R. S. 1881, 1064. Scranton v. Stewart. 52 Ind. 68. (v) Murray v. Kelly, 27 Ind. 42; (q) Falls v. Hawthorn, 30 Ind 444. Whitlock r. Yancleave, 39 Ind. 511 ; (r) Crews v. Ross, 44 Ind. 481; Steeple v. Downing, 60 Ind. 478; Skeen v. Muir, 34 Ind. 310. (1) Form of undertaking, Vol. 3, p. 435. XXI.] NEW TRIAL VENIRE DE NOVO. G21 The statute requires that where the new trial is granted after the term, ten days' notice shall be given the opposite party before the next succeeding term. w The notice required is simply ^hat a nev trial has been granted.(l) 966. The evidence. A new trial, as of right, can not be granted in vacation.* The application must be made in open court, and can only be granted upon proper proof of the fact that the undertaking for costs has been given. y As the application is made by motion the proof may be made by affidavit. 2 But parol evidence may properly be taken. On appeal, if there is nothing in the record to show whether the statute has been complied with or not, it will be presumed." 967. Appeal. There is nothing in the decided cases by which-the proper practice, on appeal, can be determined. The motion being treated as a part of the original action, where the new trial is granted no appeal can be taken until final judgment is rendered on the merits. b If the new trial is refused an appeal may be taken at once. Where the question arises upon the fact whether the undertaking has been given or not, it would seem to be necessary that the evidence should be set out by bill of exceptions. But in a late case it was held, under the former statute, that where it appeared, by the bill of exceptions, that the costs had been paid, without showing how or to whom, the court would presume that it was paid to the proper person, in lawful money, and that the bill of ex- ceptions need not contain the evidence. It is evident that where the party against whom the new trial has been granted desires to contest the question whether the statute has been complied with or not, he must set out the evidence showing that it was not, as the presumptions are all against him. 968. Effect of order granting. The effect of making the order granting a new trial is to vacate the judgment without any formal en- try setting it aside. d (w) R. S. 1881, 1065; Whitlock v. (a) Vanduyn v. Hepner, 45 Ind. Vancleave, 39 Ind. 51 1; Skeen v. Aluir, 589; Hunter v. Chrisman, 70 Ind. 439. 84 Ind 310. (b) Ante, 940. (x) Ferger v. Wesler, 35 Ind. 53. (c) Hunter r. Chrisman, 70 Ind. 439, (y) Crews v. Ross, 44 Ind. 481, 483; 445. McSheely v. Bentley. 31 Ind. 235. (d) Steeple v. Downing, 60 Ind. (z) Golden v. Snellen, 54 Ind. 282. 478; Maxwell v. Campbell, 45 Ind. 360. (1) Form of notice, Vol. 3, p. 435. 622 NKW TRIAL VENIRE DE NOVO. [CHAP. The cause stands for trial at the next ensuing term, the proper notice being given. 969. Default ; can be no new trial as of right. Where the judgment has been taken by default there can be no new trial as of right. 6 VENIRE DE NOVO.(l) 970. Defective verdict. Venire de novo is a common-law remedy and is unknown to the code. It can only be resorted to where there is some defect appearing on the face of the verdict or finding/ To authorize a venire de novo the verdict must be so uncertain, am- biguous, or defective that no judgment can be rendered thereon. 8 Where there is no defect or uncertainty in the verdict or finding there is no ground for the motion. 11 Where the verdict is certain as to the complaining party he can not avail himself of its uncertainty as to others.' But where there is no finding as to one of the parties he is entitled to a new venire.* Where there is a general and special verdict returned, and the latter covers the whole of the issues, there is no error in striking out the gen- eral verdict, and a venire de novo in such case should be refused. k The failure to assess damages is a defect in the verdict that is reached by a motion for a venire de novo. 1 That the court failed to find conclusions of law on the special find- ings is no reason for awarding a venire de novo. m 971. Failure to find the whole issue. It was held, in a long line of decisions, that, svhere a special verdict or special finding of the (e) Fisk v. Baker, 47 Ind. 534. v. Martin, 75 Ind. 228; Trout v. West, (f ) Shaw v. The Merchant's Na- 29 Ind. 51 ; Bonewits v. Wygant, 75 tional Bank, 60 Ind. 83; McClintock a. Ind. 41; Thames Loan, etc., Co. v. Theis, 74 Ind. 200; Lock.t>. The Mer- Beville, 100 Ind. 309; Vol. 3, p. 438. chant's National Bank, 66 Ind. 353. (h) Woodward t. Begue, 53 Ind. (g) Moore r. Read, 1 Blkf. 177; Box- 176; Webster v. Bebinger, 70 Ind. 9; ley v. Collins, 4 Blkf. 320; Bosseker v. Dehority r. Nelson, 56 Ind. 414. Cramer, 18 Ind. 44; The Cincinnati, (i) American Express Co. v . Patter- etc., R. R. Co. v. Washburn, 25 Ind. son, 73 Ind. 430; Compton v. Jones, 259; Smith v. Jeffries, 25 Ind. 376; 65 Ind. 117. Marcus v. The State, 26 Ind. 101; (j) Clark v. Brown, 70 Ind. 405. Merrick v. The State, 63 Ind. 327; (k) Webster v. Bebinger, 70 Ind. 9; Hershman v. Hershman,, 63 Ind. 451 ; (1) Brickleyu.Weghorn, 71 Ind. 497; Ridenour v. Beekman, 68 Ind. 236; Hershman v. Hershman, 63 Ind. 451. Brickley v. We^horn, 71 Ind. 497; (m) Holmes v. The Phoenix Mutual Peed p. Brenneman, 72 Ind. 288; Lentz Life Ins. Co., 49 Ind. 356. (1) Form of motion, Vol. 3, p. 438. .1X1.] NEW TKIAL VENIRE DE NOVO. 623 court did" not cover all of the issues in the cause, a venire de novo must be granted." But these cases are in effect overruled by later decisions. It is now firmly settled that the office of a special verdict or special finding is to find the/acfe proved, and if the facts as found do not cover all of the issues this is not a defect appearing upon the face of the ver- dict. Where a fact necessary to cover the issues is not found, it must be regarded as not proved by the party having the burden of proof as to such fact, and the verdict must be construed as a finding against him to that extent. If such finding is not sustained by the evidence, the remedy is by a motion for a new trial, and not fora venire de novo. With this construction of the statute, the only ground for a motion for a venire de novo is that the verdict is so defective or uncertain on its face that no judgment can be rendered. That it fails to find all of the facts proved is cause for a new trial. p 972. Finding the evidence or conclusions of law. It is the office of a special verdict or finding to find the facts; therefore, if it appears upon the face of the verdict or finding that the evidence, and not the facts established thereby, or mere conclusions of law have been found, it is ground for a venire de novo.' 1 The fact that one of several special findings of facts is merely a statement of conclusions of law does not affect the others/ 973. Imperfect answers to special interrogatories. The authorities are conflicting on the question, whether or not the failure of the jury to make full and perfect answers to interrogatories can be reached by a motion for a venire de novo. In some cases it has been held to be the proper remedy. 9 It has been held otherwise in both earlier and later cases.' (nj Bosseker v. Cramer, 18 Ind. 44; (p) Ante, g 810, 851, and cases Jenkins , v. Parkhill, 25 Ind. 473 ; cited; Vol. 3, p. 438. Houscvvorth v. Bloom huff. 54 Ind. 487; (q) Locke v. The Merchants' Na- AVhitworth v. Ballard, 56 Ind. 279; tional Bank, 66 Ind. 353; Jones v. Jackson v. Rounds, 59 Ind. 116; The Baird, 76 Ind. 164; Witham v. Earl Gazette Printing Co. v. Morss, 60 Ind. of Derby. 1 Wils. 48; Parker v. Hub- 153; Anderson v. Donnell, 66 Ind. 150, ble, 75 Ind. 580. 159; Gulick v. Connelly, 42 Ind. 134; (r) Anderson v. Donnell, 66 Ind. Buskirk's Prac., pp. 207, 219. 150. (o) Graham v. The State, 66 Ind. (s) Pea v. Pea, 35 Ind. 387; Peters 386; Ex parte Walls, 73 Ind. 95, 110; v. Lane, 55 Ind. 391. Vannoyr. Duprez, 72 Ind. 26; "Wilson (t) McElfresh r. Guard, 32 Ind. r. Hamilton, 75 Ind. 71; Stumph v. 408; Ogle v. Dill, 61 Ind. 438; West Hauer. 76 Ind. 157 ; Jones v. Baird, 76 v. Cavins, 74 Ind. 265. Ind. 164; ante, 811, 851. 624 NEW TRIAL VENIRE DE NOVO. [CHAP. XXI. The proper practice, where the interrogatories, or any of them, have not been properly answered, is to object to the verdict being received. It is the duty of the court to send the jury out and require that the interrogatories be fully and fairly answered. If this is not done, and the verdict is received, exception should be taken at the time, and the question properly reserved by bill of exceptions, and assigned as a cause for a new trial. u The objection to the verdict being received must be made at the time, or the defect in the answers to interrogatories is waived/ 974. Motion must be made before judgment. A motion for a venire de novo should precede a motion for a new trial. w And it can not be made after judgment. x 975. Appeal. The question upon the sustaining or overruling of a motion for a venire de novo is presented in the supreme court by an assignment of error. y As the question arises upon the face of the ver- dict or finding, the evidence need not appear in the record. 2 The motion must be made, as we have seen, before judgment, and an exception must then be taken. A bill of exceptions, showing the motion and the ruling thereon, is necessary. (u) McElfresh v. Guard, 32 Ind. (y) Bonewits v. Wygant, To Ind.41 ; 408; West v. Cavins, 74 Ind. 265. Wilson v. Hamilton, 75 Ind. 71 ; Ogle (v) Vater v. Lewis. 36 Ind. 288; v. Dill, 61 Ind. 438; Locke v. The Byram v. Galbraith, To Ind. 131. Merchant's National Bank, 66 Ind. (w) Jenkins v. Parkhi.ll, 25 Ind. 473. 353. (x) Shaw v. The Merchants' !Na- (z) Buskirk'o Prac. 212. tional Bank, 60 Ind. 83, 94. JUDGMENT. CHAPTER XXII. JUDGMENT.(l) 625 SECTION. 976. Defined. 977. Classification. . 978. Final judgments. 979. Interlocutory judgments. 980. Different modes of obtaining judgment. 1. IJ ACTIONS COMMENCED BY PROCESS. 981. On general verdict. 98z. On issue formed in abatement. 983. On special verdict. 984. On special fimlings and conclu- sions of law. 985. On answers to special interroga- tories. 986. On the pleadings. 987. On demurrer. 988. Where plaintiff is barred as to part of the defendants. 989. Against part of plaintiffs or de- fendants. 990. In actions of ejectment. 991. Where there is a set-off. 992. Judgment on default. 993. On constructive notice. 994. Judgment in rem may be opened in five years. 995. Judgment without notice. 996. Judgment without defaulting the defendant. 2. IN AX ACTION COMMENCED BY AGREEMENT. 997. Agreed case. 998. Judgment by agreement. 3. BY CONFESSION WITHOUT AN ACTION. 999. Offer to allow judgment. 1000. Offer to confess judgment. (l)Forms of judgments, Vol. 3, pp. 439-474. 40 SECTION. 1001. Confession of judgment. 1002. Confession by attorney. 1003. The judgment. FORM OF JUDGMENT. 1004. Generally. 1005. Arbitration and award. 1006. Attachment. 1007. Bastardy. 1008. Against executors, administra- tors and guardians. 1009. Foreclosure of mortgages. 1010. Vendors' liens. 1011 Against heirs for debt of ances- tor 1012. Judgment without relief. 1013. Against public officers and others acting in a fiduciary capacity without relief or stay. 1014. On bonds, written undertakings and recognizances. JUDGMENT FOR COSTS. 10J5. Recovered in civil actions. 1016. Exceptions recovery underfifty dollars. 1017. In actions for damages solely. 1018. Kelators liable for costs. 1019. When apportioned. 1020. Where suits can be joined costs in one only. 1021. On appeal from justice of the peace. 1022. On offer to allow cr confess judg- ment. 1023. Claims against estates. 1024. Disclaimer. 1025. Reversal by supreme court. 1026. Adjudged before final judgment. G26 JUDGMENT. [CHAP. SECTION. 1027. Belongs to the party recovering judgment. 1028. Security for costs. 1029. Form of judgment for costs; HOTV DEFECT IN FORM REACHED. 1030. By motion in the court below. 1031. Correcting judgments. 1032. How judgment entered and signed. EFFECT OF JUDGMENT. 1033. Merges the cause 'of action. 1034. The lien. 1035. Judgment docket. 1036. Transcript to bind real estate. 1037. Transcript of justice of the peace. 1038. When conclusive collateral at- tack. 1039. Effect of appeal from judg- ment. REPLEVIN BAIL. 1040. The statute. 1041. Is a judgment confessed. 1042. What judgments repleviable. 1043. How entered. 1044. Where part of judgment cred- itors are sureties. ARREST OF JUDGMENT. 1045. For what causes -judgment may be arrested. 1046. Goes to the whole complaint. 1047. The motion. 1048. Effect of arresting judgment. SECTION. REVIEW OF JUDGMENTS. 1049. Causes for review. 1050. The parties. 1051. The pleadings complaint for error of law. 1052. The trial. " 1053. The bond. 1054. The judgment. 1055. When proceeding to review al- lowed. 1056. Effect of. review. VACATING JUDGMENTS. 1057. How and for what causes. SATISFACTION OF JUDGMENTS. 1058. By lapse of time. 1059. By payment. 1060. By levy of execution. 1061. By the sale of property. 1062. Entry of payment, release or satisfaction. 1063. Action to compel an entry of sat- isfaction. REVIVOR OF JUDGMENTS. 1064. Leave to issue execution after ten years. 1065. By or against executors and ad- ministrators unnecessary. 1066. Revivor upon death of judgment defendant. 1067. Defenses in actions to revive. ACTIONS ON JUDGMENTS. 1068. Are debts of record, and may be collected by suit. 1069. Defenses. 976. Defined. A judgment is " the decision or sentence of the law pronounced by a court or other competent tribunal, upon the matter contained in the record." 3 The distinction which formerly ex- isted between judgments at common law and decrees in equity is unim- portant in practice under the code. The distinction between common- law actions and suits in equity is abolished so far as the practice is cou- (a) Freeman on Judg., sec. 2; Igluhart's Prac. and PI. 263, sec. 3. xxn.] JUDGMENT. 627 cerned, and although the term decree is still in use in actions that were formerly cognizable in courts of chancery, it is unknown to the code. To constitute a judgment, proper words should be used. Thus it is said: "To constitute a valid judgment, the word 'recover' should be used, and the amount of the recovery should be stated, where a money judgment is rendered ; and in other cases, appropriate words should be used, having reference to the relief granted." b The statute provides that the word judgment means all final orders, decrees, and determina- tions in an action; also, all orders upon which executions may issue.* 977. Classification. At common law, judgments were divided into various classes or divisions. The code contains no definitions or classifications of the different kinds of judgments. The distinction between final and interlocutory judgments is important in practice, and should not be overlooked. Other classifications need not here be noticed. 978. Final judgment. A final judgment is one which puts an end to the controversy, leaving nothing further to be done except to carry it into execution. It is not necessary, however, that the judgment should put an end to the cause of action to render it final. It is enough if it disposes of the action, leaving the plaintiff at liberty to sue again for the same cause.* 1 Thus a judgment of dismissal or upon demurrer will amount to a final judgment, but the plaintiff may renew his action, except where a judgment upon demurrer determines the merits of the controversy. 6 The sustaining of a demurrer is not a final judgment. There must be a judgment of the court upon the refusal of the party to plead fur- ther/ An order of the court, in final settlement of the administration of an estate or of a guardianship, by which the estate is fully settled and the administrator or guardian discharged, is a final judgment. 8 But an order approving a partial report is not. h (b) Needham v. Gillasby, 49 Ind. (f) Brannock . Stocker, 76 Ind. 245. 673; Slagle v. Bodmer, 58 Ind. 465. (a) R. S. 1881, I 1285. (g) Angevine r. Ward, 66 Ind. 460; (c) Freeman on Judg., g 5, 6, 7. Dufour v. Dufour, 28 Ind. 421 ; San- (d) Freeman on Judg., 12; Reese ders v. Loy, 61 Ind. 298; Pate v. v. Beck, 9 Ind. 238. Moore, 79 Ind. 20. (e) Ante, vol. I., 605. (h) Candy r. Han more, 76 Ind. 125. 628 JUDGMENT. ' [CHAP. So of the approval of the reports of an assignee of an insolvent debtor.' Nor is it where the administrator makes his final report and is dis- charged without finally settling the estate.- 1 An order overruling or sustaining a, motion to tax costs, after the cause has terminated, is a final judgment. k But not when the cost is taxed upon an interlocutory order. 1 An order made against the administrator of a guardian to pay the money in his hands into court for the use of the ward is a final judg- ment. What constitutes the final judgment in a proceeding to sell real es- tate by an administrator or guardian may admit of some doubt. It is held in some of the cases that it is not the order to sell, but the com- pletion of it by the order confirming the sale." A like rule prevails in actions fcr the partition of real estate. These decisions rest upon the ground that, until the sale is confirmed, the court may set it aside for good cause shown; therefore, the order authorizing the sale is not final. The allowance of a claim against an estate by the administrator is not final. The court may, notwithstanding the allowance, require ad- ditional evidence and render a different judgment. 1 * The present statute differs materially from the one under which the case cited was decided. Now the administrator or executor is required to report to the court on the first day of each term such claims as are allowed, and it is made the duty of the court, "if no objection appear or be shown thereto, to enter an allowance for the amount of the claim, with six per cent interest thereon from the date of the allowance," and an allowance may thus be made for a portion of a claim, with the con- sent of the claimant.* 1 This order of the court entering the allowance is "operative as an adjudication of the validity and amount of the claim," and constitutes the final judgment/ (i) Cravens v. Chambers, 55 Ind. 5. horn, 13 J.nd. 438; see also Seward v. (j) Parsons v. Milford, 67 Ind. 489; Clark, 67 Ind. 289. Lang v. The State, 67 Ind. 577. (o) Griffin v. Griffin, 10 Ind. 170; (k) Hill v. Shannon, 68 Ind. 470. Berry v. Berry, 22 Ind. 275; Hunter r. (1) W aimer v. Shulenberger, 23 Ind. Miller, 17 Ind. 88; Davis v. Davis, 36 454. Ind. 160; Kennick v. Chandler, 59 Ind. (m) Covey v. Neff, 63 Ind. 391. 354. (n) Staley v. Dorset, 11 Ind. 367; (p) Fisous r. Bobbins, GO Ind. 100. Love v. Mikals, 12 Ind. 439; Simpson (q) R. S. 1881, 2319. v. Pearson, 31 Ind. 1 ; Crews v. Cleg- (r) II. S. 1881, 2320. xxn.] JUDGMENT. G29 There can be no final judgment rendered while there is an issue of law or fact pending undisposed of. 979. Interlocutory judgments. Interlocutory judgments, or "orders," as they are more frequently termed, have been variously de- fined. 8 The difference between a final and an interlocutory decree has been thus stated : " If, after a decree has been entered, no further questions can come before the court, except such as are necessary to be determined in car- rying the decree into effect, the decree is final ; otherwise, it is inter- locutory. But an order or decree made for the purpose of carrying a judgment or decree already entered into effect is not a final judgment or decree."* It is a judgment or order that does not terminate the action, but leaves something yet to be done by the court to determine the ultimate rights of the parties. Thus it is held that the order fixing the interests of the owners in a partition proceeding, and appointing commissioners to make partition or sale, is interlocutory. 11 So of orders granting temporary injunctions or restraining orders. 7 And setting aside a default or relieving a party from a judgment taken against him through surprise or his excusable neglect. w Or orders to sell real estate by administrators, executors, or guard- ians. 1 The appointment of receivers, or orders referring matters in contro- versy to a master commissioner are interlocutory. Many others might be named, but these will serve to illustrate the difference between final and interlocutory judgments or orders. 980. Different modes of obtaining judgment. There are three different modes of proceeding by which judgment may be ob- tained : 1. In an action commenced by process. 2. In actions commenced by agreement. (s) Freeman on Judg., 29, 31. (v) Slagle v. Bodmer, 58 Ind. 465; (t) Freeman on Judg., 36. Fisk v. The Patriot and Barkworks Tp. (u) Griffin . Griffin, 10 Ind. 170; Co., 54 Ind. 479. Berry v. Berry, 22 Ind. 275; Hunter (w) Martindale v. Brown, 18 Ind. c.Miller, 17 Ind. 88 ; Davis v. Davis, 284; Spaulding v. Thompson, 12 Ind. 36 Ind. 160; Rennick r. Chandler, 59 477. Ind. 354. (x) Ante, 978. 630 JUDGMENT. [CHAP. 3. By confession, without an action. 7 These will be considered in their order. I. IN AN ACTION COMMENCED BY PROCESS. 981. On general verdict. " When a trial by jury has been had and a general verdict rendered, the judgment must be in conformity to the verdict." 7 The verdict of a jury is not effective without a judgment thereon.* Nor can a judgment upon an issue of fact stand without a finding of the court or the verdict of a jury to support it. b Therefore the two must concur and conform the one to the other to constitute a valid and binding adjudication of the questions of fact presented in the record. It is intimated in some of the decided cases that the judgment may be varied from the verdict of a jury as to the amount of the recovery, to make the amount of the judgment correspond with admissions in the pleadings. d The cases are not positively decided, and to allow such a course would be bad practice. The fact that the verdict was for too much or too little, in the judgment of the court, as shown by admissions in the pleadings, would afford sufficient cause for a new trial; but the verdict should not be allowed to stand for one amount and a judgment be ren- dered for another. It was held formerly that interest could not be allowed on the ver- dict before the rendition of judgment. 6 But the present statute provides that interest on judgments shall be from the date of the return of the verdict or finding of the court. f The judgment should be for the amount found by the verdict, not including the interest, as to include it in the judgment would be to compound the interest. In arriving at the amount due upon the judg- ment, the interest should be computed from the date ' of the return of the verdict. 982. On issue formed in abatement. Under the present stat- ute, an issue formed by an answer in abatement must be first tried. 8 (y) Kennard v. Carter, 64 Ind. 31. dyke, Marmon & Co. v. Dickson, 76 (z) K. S. 1881, 564. Ind. 188. (a) Shirk v. Wilson, 13 Ind. 129. (d) Meredith v. Lackey, 14 Ind. 529; (b) Nicholson v. Caress, 76 Ind. Meredith v. Lackey, 16 Ind. 1. 24. (e) Blickstaff v. Perrin, 27 Ind. 527. fc) Bowles v. Stout, 60 Ind. 267; (f) K. S. 1881, 5199. Mitchell v. Geisendorf, 44 Ind. 358; (g) K. S. 1881, 365; ante, vol. I., Taylor v. Taylor, 64 Ind. 356; Nor- 560. XXII.] JUDGMENT. 631 It is held in some of the earlier cases that, where the issue is decided in favor of the plaintiff, the judgment should be peremptory, quod re- cuperet.^ But where the judgment was on demurrer to a plea in abatement, it was held it should not have been peremptory, but interlocutory, quod respondeat ouster. 1 The present statute provides in express terms that. "If the issue be found against the answer, the judgment must be that the party plead over and against him for all costs of the action up to that time." j This statute so changes the common-law rule of pleading that the judgment on an issue formed on an answer in abatement, whether the issue be one of law or of fact, must be that the defendant plead over to the merits. If the issue be decided against the plaintiff, it must be that the ac- tion abate, and has the effect to terminate the present action. The common-law form of judgment was that the writ or declaration be quashed.* If the complaint is amendable, the plaintiff should be granted leave to amend, so as ta avoid the matter in abatement. 1 983. On special verdict. "Where the verdict is special, or where there has been a special finding on particular questions of fact, the court shall render the proper judgment." 111 The office and form of special verdicts, and the practice in connec- tion therewith, have been considered." It is not necessary that a special verdict shall find the amount due the plaintiff. The verdict may state the facts found, leaving the court to determine whether the plaintiff or defendant is entitled to recover, and if so, how much. Where this is done, the judgment fixes the rights of the parties under the facts found. But it is necessary, in this class of cases, as in all others, that the judgment shall conform to the verdict, and if the judgment rendered is not " proper," this will be cause for reversal. Therefore, where the amount the plaintiff is entitled to recover is fixed by the special verdict, if the law is with him, leaving the court to determine whether he is entitled to recover at all upon the facts found, the court, if it is adjudged that he is entitled to recover, (h) John v. Clayton, 1 Blkf. 54; At- ( j) K. S. 1881, 3 365. kinson v. The State Bank, 5 Blkf. 84; (k) Stephen PI., p. 107. Neal v. Mills, 5 Blkf. 208. (1) Gould's PI., chap. 5, 159. (i) Lambert v. Lagow, 1 Blkf. 388; (m) R. S. 1881, 565. Atkinson v. The State Bank, 5 Blkf. (n) Ante, vol. I., 849 et. seq. 84; Clarke v. Hite, 5 Blkf. 167. 632 JUDGMENT. [CHAP. must be governed by the amount fixed iu the verdict. So, where the verdict concluded, " If, upon the above facts, the court shall be of the opinion that the law is with the plaintiff, we find for the plaintiff one hundred and seventy-five dollars ; but if the court shall be of the opinion that the law is with the defendants, we find for the defend- ants," it was held that the amount of the judgment could not exceed that fixed by the special verdict. 984. On special findings and conclusions of law. The stat- ute provides that, at the request of either party, the court shall find the facts specially, and the conclusions of law thereon. p The conclusions of law do not constitute the judgment of the court, as is sometimes supposed. The finding of facts and conclusions thereon are the basis of the judgment, and it must be " entered accordingly."* 1 The practice relating to trials by the court has been fully considered elsewhere/ The judgment must conform to the conclusions of law. If the con- clusions of law are not supported by the findings, the question is pre- sented by an exception to the conclusions. If the finding of facts is not sustained by the evidence, or is contrary to law, these are causes for a new trial. 9 If the findiug of facts is sustained by the evidence, and the conclu- sions of law are supported thereby, judgment follows as of course. If the special finding is made without a request from either party, or if it is not signed by the judge, it must be treated as a general finding,* the conclusions of law be disregarded, and judgment rendered on the gen- eral verdict. Where the findings support but one paragraph of the complaint, judgment must be rendered on such paragraph alone, and can not ex- ceed the amount claimed therein." It has been Jield that, where, from the special finding of facts, it appears that a mistake has been made in the conclusions of law as to the amount of recovery, and the judgment is for the correct amount, there is no available error. v This decision may have been proper in that case, but it will not do (o) Mitchell v. Geisendorff, 44 Ind. 916; Lockwood v. Dills, 74 Ind. 56; 368. Love v. Geyer, 74 Ind. 12. (p) K. S. 1881, 551; ante, vol. I., (t) Caress v. Foster, 62 Ind. 145; g 803. ante, vol. I., 804. (q) B. S. 1881, 551. (u) Helms v. Kearns, 40 Ind. 124; (r) Ante, vol. 1., \ 803 et seq. ante, vol. I., 807. . . (s) Ante, vol. I., 809, 810, 914, (v) Sanders v. Scott, 68 Ind. 130. XXII.] JUDGMENT. G33 to apply generally. The effect of it is to disregard the conclusions of law and render judgment on the special finding, which would, in many cases, deprive a party of the benefit of his exception to the conclusions of law. In the case cited, it is placed on the ground that there was a mistake in the conclusions of law, which was apparent on their face as shown by the figures. 985. On answers to special interrogatories. The practice is materially different where the special findings of fact are by a jury. In such case there must also be a general verdict." The special findings control the general verdict when inconsistent therewith. 1 It follows that there may, in this class of cases, be a judgment on either the general verdict or the special findings, depending upon whether they are inconsistent or not. But in order to entitle either party to a judgment on the special findings, he must move therefor; otherwise the judgment must be rendered on the general verdict. y The motion for judgment need not be in writing, and an exception to the ruling of the court thereon presents the question to the supreme court without a bill of exceptions. 2 It was held in an earlier case that a bill of exceptions was neces- sary. 8 But this case is expressly overruled in Salander v. Lockwood. In either case, the judgment must conform to the finding upon which it is based, whether the general verdict or the special findings of fact. b 986. On the pleadings. " When, upon the statements in the pleadings, one party is by law entitled to judgment in his favor, judg- ment shall be so rendered by the court, though a verdict has been found against such party." Where the allegations contained in the plaintiff's complaint are not denied or avoided by the defendant's answer, he may demand judg- ment on the pleadings, notwithstanding there is a verdict or finding against him. d (w) Ante, vol. I., 862, and author- (a) Shaw r. The Merchants' Nat. ities cited. Bank, 60 Ind. 83. (x) Ante, vol. I., 861. (b) 11. S. 1881, 564, 565. (y) Ante, vol. I., 864, and cases (c) R. S. 1881, 566. cited. (d) Fitch v. Polk, 5 Blkf. 86; The (z) The Terre Haute, etc., R. R. Co. Board of Trustees of the Wabash and v. Clark, 73 Ind. 168; Salander v. Erie Canal v. Mayer, 10 Ind. 400; Lockwood, 66 Ind 28~>. Martindale v. Price, 14 Ind. 115; Needham v. Webb, 20 Ind. 213. C34 JUDGMENT. [CHAP. Or he may have judgment in such case without going to trial. e But where there is one or more good paragraphs of answer, there can not be judgment for the plaintiff on the pleadings.' A party may have judgment in his favor where the pleading of his adversary admits his cause of action or defense, or confesses and fails to avoid the same. g And w r here the defendant pleads, but his answer is insufficient, the plaintiff is entitled to judgment on the pleadings after verdict. h The plaintiff, by failing to demur and going to trial on an issue formed by his reply, does not waive his right to judgment after verdict, where the answer is insufficient, although the allegations of the answer are fully- proved. If the, plain tiff's complaint contains no cause of action, the defend- ant is entitled to a judgment in his favor, notwithstanding the verdict is against him.' But the better practice in such a case is to move in arrest of judg- ment, on the ground that the complaint does not state facts sufficient to constitute a caui-e of actionJ The rule that a party may demand judgment on the pleadings after verdict for the want of a pleading on the part of his adversary, does not apply to the defendant on the failure of the plaintiff to reply. The earlier cases were to the effect that a failure to reply entitled the defendant to judgment non obstante veredicto, as will be seen by the cases cited above ; but the later cases hold that, in order to avail him- self of the failure of the plaintiff to reply to his answer, the defendant must move for judgment in his favor at the time, and that, by going to trial, he waives his right, and his answer must be treated as if re- plied to by a general denial. k 987. On demurrer. A party against whom a demurrer has been sustained may have leave to amend. 1 (e) Hunt v. Mansur, 5 Blkf. 214. (i) The Indianapolis, etc., R. R. Co. (f) Huff v. Cole, 45 Ind. 300; Stev- v. Davis, 10 Ind. 398; The Jefferson- ens v. Overturf, 62 Ind. 331; Cox v. ville, etc., Association v. Fisher, 7 Ind. Vickers, 35 Ind. 27. 699. (g) Berry v. Borden, 7 Blkf. 384; (j) Post, 1045. Pomeroy v Burnett, 8 Blkf. 142; The (k) Preston v. Sandford, 21 Ind. 156; New Albany Plank R. Co. v. Stallcup, Train v. Gridley, 36 Ind. 241 ; Aston v. 62 Ind. 345. Wallace, 43 Ind. 468; Hiatt v. Renk (h). McClosky v. The Indianapolis, 64 Ind. 590; Locke v. The Merchants' etc., Union, 67 Ind. 86; The Western Nat. Bank, 66 Ind. 353; ante, vol. I, Union Telegraph Co. v. Fenton. 52 693, 736; Buchanan v. Berkshire L Ind. 1 ; Dorman v. The State, 56 Ind. Ins. Co., 96 Ind. 610. 454. (1) Ante, Vol. 1, 701. XXII.] JUDGMENT. G35 If he does not amend, but elects to abide the ruling of the court, judgment should be rendered against him. m If the demurrer is to the plaintiff's complaint, judgment should be given the defendant for costs. If to the answer of the defendant, the court must proceed to assess the damages, the effect of judgment against the defendant on demurrer being the same in effect as a judgment for the want of an answer." A demurrer to the complaint does not raise the question of conse- quential damages. Judgment can not be rendered against either party on sustaining a demurrer to one paragraph of his pleading, if there are other para- graphs undisposed of. The demurrer must be sustained to the whole pleading, whether in one or more paragraphs, to entitle his adversary to judgment. 1 ' But where the party permits judgment to be taken against him without objection or exception, and does not demand a trial on the re. maining paragraph, he can not raise the question in the supreme court for the first time.* 1 Although, on appeal from a justice of the peace, the statute provides that all defenses, except the statute of limitations,- set-off, and matter in abatement, may be given in evidence without pleading, if the de- fendant sees proper to plead specially, and a demurrer is sustained to his answer, or if, upon his demurrer to the reply thereto being over- ruled, he abides the demurrer and allows judgment to be taken against him thereon, without demanding a trial, he will be deemed to have waived a trial, notwithstanding he might have put the plaintiff to the proof of his complaint without any pleading on his part. r Demurrer overruled. The statute provides: "The judgment upon overruling a demurrer shall be that the party plead over, and the answer or reply shall not be deemed to overrule the objection taken by demurrer. But no objection taken by demurrer and overruled shall be sufficient to reverse the judgment, if it appear from the whole rec- ord that the merits of the cause have been fairly determined. If a (m) Mangeot v. Block, 11 Ind. 244. (p) Ewing r. Codding, 5 Blkf. 433; (n) R. S. 1881, 573; The Pullman Seitsv.Sinel, 62 Ind. 253; Poock v. The Palace Car Co. v. Taylor, 65 Ind. 153; Lafayette Building Association, 71 Ind. Hodson v. Davis, 43 Ind. 258. 357. (o) The Western Union Tel. Co. v. (q) Poock v. The Lafayette Building Hopkins, 49 Ind. 223 ; Busk Practice, Association, 71 Ind. 357. 187. (r) Roberts v. Norris, 67 Ind. 886. G36 JUDGMENT. [CHAP. party fail to plead after the demurrer is overruled, judgment shall be rendered against him as upon a default." 8 When the party's demurrer is overruled, he should either plead over, or, if he is authorized by the statute to controvert the cause of action of liis adversary, or prove a defense without pleading, he should de- mand a trial. By acquiescing in the ruling of the court on the demur- rer, Avithout pleading further or demanding a trial, he must be regarded as standing upon the court's ruling, thereby waiving any further action by the court, and judgment may be taken against him, under this sec- tion, as upon a default. 1 The statute expressly provides that, by pleading over, the party does not waive any error that may have been committed in overruling his demurrer, if the proper exception is taken." No formal judgment that the party plead over is rendered in prac- tice/ but it is expressly required by the terms of the statute. It is upon the failure to comply with this judgment that final judgment as upon default is authorized. Where the demurrer overruled is to the complaint, the damages must be assessed by the court as in other cases. w Where the parties agree that the submission of a demurrer to the complaint shall be a submission of the cause, and the decision thereon a decision of the action on its merits, a judgment rendered on the de- murrer is final, and, if sustained, the plaintiff is not entitled to amend. 1 In one case it has been held that, in an action to be relieved from a judgment on the ground that the same was obtained through the de- fendant's mistake or excusable neglect, a demurrer to the complaint is tantamount to a submission of the cause on its merits. 7 If this can be regarded as the law in any case of this kind (which may be doubted), it certainly can not be in all cases. A question of fact may arise upon the allegation of diligence that could not be pre- sented by demurrer, as the defendant by his demurrer is bound by the facts as stated. He should have the right, after his demurrer is over- ruled, to controvert the allegations of fact contained in the complaint. 21 Taking the case of Nord v. Marty as an example : it was alleged in the complaint that a certain conversation had taken place between the defendant and plaintiff's attorney in the original action, and that the (s) R. S. 1881, 2 345. (v) Sage v. Matheny, 14 Ind. 369. (t) Roberts v. N orris, 67 Ind. 386; (w) Ante, vol. I., 455. Mangeot v. Block, 11 Ind. 244 ; Sage v. (x) S.lagle r. Bodmer, 75 Ind. 330. Matheny, 14 Ind. 369. (y) Nord v. Marty. 5(1 Ind. 531. (u) R. S. 1881, \ 345. (z) Slagle v. Bodmer, 75 Ind. 3 :0. JUDGMENT. 637 defendant went to Owensboro, Ky., on business requiring his attention, and before he could return home the Ohio river was frozen up, which prevented his return in time to attend the court. These were certainly traversable facts that might have been dis- proved by the plaintiff. To hold that the submission of the demurrer was a submission of the cause on its merits was to deprive him entirely of the right to prove that the facts alleged as an excuse for the failure to be present at the trial did not exist. It is believed that the supreine court did not intend by the language used to lay down this broad rule. But it is difficult to see, from what is disclosed in the opinion, how the rule could properly have been ap- plied in that case with any more propriety than in any other case seek- ing the same relief. To present any question on appeal upon the refusal of the court to ren- der judgment on demurrer, a motion must be made for such judgment, and, if overruled, the proper exception must be taken at the time." 988. Where plaintiff is barred as to part of the defend- ants. Where the plaintiff is barred by the statute of limitations as against a part of the defendants, he may still prosecute his action and recover judgment against those still liable. b This may occur where the operation of the statute is avoided, as to one of the parties, by a new promise. The new promise by one joint contractor does not affect the liability of the other. The plaintiff must join all of tlie parties, and if any plead the statute of limitations successfully, judgment should be rendered in their favor, but the plaintiff should have judgment against the other defendants. 989. Against part of plaintiffs or defendants. The statute provides : " Sec. 568. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several de- fendants ; and it may, when the justice of the case requires it, deter- mine the ultimate rights of the parties on each side as between them- selves." " Sec. 50U. In a suit against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper." (a) Lammers v. Balfe, 41 Ind. 218. (c) Ante, vol. I., \ 289; Kirk . (b) R. S. 1881, 5G7. Hiatt, 2 Ind. 322. 638 JUDGMENT. [CHAP. " Sec. 570. Though all the defendants have been summoned, judg- ment may be rendered against any of them severally, when the plaintiff would be entitled to judgments against such defendants if the action had been against them severally." d The practice where some of the defendants in a joint action have not been served, or where there is a return of not found, has been con- sidered. 8 It is held that where too many plaintiffs join a demurrer for want of sufficient facts will reach the defect, and the demurrer must be sus- tained as against all of the plaintiffs, where a cause of action is shown in favor of a part of them only. f It must follow that a judgment on demurrer in such case against the plaintiffs must be against all of them and can not be severed. I have attempted to show elsewhere that this rule, though well estab- lished by authority, is inconsistent with the general provisions of the code, and especially the section under consideration^ Sec. 568 is not confined by its terms to any particular kind of action, and applies to both plaintiffs and defendants. So if upon the trial a cause of action is shown in a part of the plaintiffs and a part not, whether they sue as joint obligees or otherwise, the judgment should be rendered in favor of those in whom a cause of action is shown and against the others. The same rule should be applied to the defendants. Although the plaintiffs elect to treat them as joint obligors, if the proof shows that a part are not liable at all, judgment should be ren- dered accordingly. 11 These sections do not change tire common-law rule that parties jointly liable must be jointly sued, and that a judgment against one joint obligor merged the cause of action and released the other. 1 But at common law, if the plaintiff elected to treat the contract as joint and the general issue was pleaded, he was bound to prove a joint liability or fail in his action. These sections change this rule. Although the plaintiff alleges the liability of the defendants to be joint, if upon the trial the proof shows their liability to be several, or that part are not (d) K. S. 1881, \\ 568, 569, 570. Whitaker, 36 Ind. 509 ; The Louisville, (e) Ante, vol. I., 443, 446. etc., K. W. Co. v. Duvall, 40 Ind. 246; (f) Ante, vol. I., 101, 102, 354, Stafford v. Nutt, 51 Ind. 535; Graham 482. v. Henderson, 35 Ind. 195; Blodget v. (g) Ante, vol. I., 101, 102. Morris, 14 N. Y. 482 ; Murray v. (h) Draper v. Vanhorn, 12 Ind. 352; Ebright, 50 Ind. 362. Douglass v. Rowland, 11 Ind. 554; (i) Erwm v. Scotten, 40 Ind. 389; Hubbell v. Woolf, 15 Ind. 204 ; Cutchen Murray v. Ebright, 50 Ind. 362. v. Coleman, 13 Ind. 568; Carmien v. xxn.] JUDGMENT. 639 liable, he does not fail in his action. The judgment must be rendered in accordance with the proof. The court has chancery powers, and may adapt its judgment to the rights and liabilities of the.parties. Thus it is said: "Under our present code the court may render judgment for one of several joint plaintiffs and against the others, or ;i larger sum for one and a less one for the others ; and so of the de- fendants. The court possesses chancery powers in adapting its judg- ments to the rights of the parties." j Again : "If defendants were jointly sued at common law, and wished to deny such joint liability, their course was to plea-l the gen- iTiil issue, and thus put the plaintiff to the proof of the liability as alleged, failing in which the plaintiff failed in his action. Under the code, a general denial puts the plaintiff upon the proof of the joint liability, if he would obtain a joint judgment. But if he do not prove the joint liability, it does not follow that the plaintiff wholly fails in his action. The code has changed the common-law rule as it was in actions at law, and has made it like the common- law rule in suits in chancery. It provides that judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants." 1 " The same rule applies in justices' courts. 1 990. In actions of ejectment. We have a similar provision in the code that relates exclusively to actions for the recovery of real estate. It provides : " Where there are two or more plaintiffs or de- fendants, any one or more of the plaintiffs may recover against one or more of the defendants the premises, or any part thereof, or interest therein, or damages, according to the rights of the parties ; but the recovery shall not be for a greater interest than that claimed. " m It is held under this section that a joint judgment may be rendered against all of the defendants for possession of the land, and a separate judgment against one of them for damages. 11 The section does not affect the rules of pleading. The complaint, to be good, must state a cause of action in favor of all the plaintiffs as in other cases. It is only where the complaint states a cause of action in all, but the proof sustains it as to a part only, that the section is ap- plicable. (j) Draper v. Vanhorn, 12 Ind. 352. Small, 58 Ind. 349; Steeple v. Dowri- (k) Stafford v. Nutt, 51 Ind. 535, ing, 60 Ind. 478. 538. (n) Clements v. Robinson, 54 Ind. (1) Fitzgerald v. Center, 26 Ind. 599. 238. (o) Parker v. Small, 58 Ind. 349. (m) R. S. 1881, 1060; Parker v. G40 JUDGMENT. [CHAP. In the supreme court if the judgment below is for all of the plain- tiffs when it should have been for a part only, it will be reversed as to those in whom no cause of action is shown and affirmed as to the others." 991. Where there is a set-off. "If a set-off established at the trial exceed the plaintiff's claim so established, judgment shall be rendered for the excess ; or if it appear that the defendant is entitled to any other affirmative relief, judgment shall be given therefor." Where a set-off is pleaded and established, whether it is sufficient to overcome the plaintiff's whole claim or not, the judgment is double in its nature, being in favor of the plaintiff on his cause of action and in favor of the defendant on his set-off. But instead of rendering two separate judgments the recovery must be for the difference between the two claims, whether in favor of the plaintiff or defendant, not ex- ceeding the amount claimed by the defendant if in his favor. p 992. Judgment on default. The manner of taking default, and the practice relating thereto, has been partially considered in a former chapter.* 1 The amount of the judgment, where there is a default, can not ex- ceed the amount demanded in the complaint/ A default simply admits a cause of action in the plaintiff, not the amount. Without proof of the amount due the judgment must be for nominal damages only where the action is for the recovery of money, and the defendant may, after a default taken against him, contest the amount of damages. 9 The effect of a judgment by default, as an admission of the defend- ant, or as an estoppel or former adjudication, can not be extended be- yond the allegations contained in the complaint. Thus, where an ac- tion was brought. to foreclose a mortgage making the widow of the de- ceased grantor a party, alleging simply that she was an heir, she suf- fered a default, and judgment of foreclosure was rendered. In a subsequent action by her to partition the laud, it was held that she was not estopped by the judgment to claim the one-third inherited (n) Steeple v. Downing, 60 Ind. 478, (q) Ante, vol. I., 448 et seq. 503. (r) K. S. 1881, 385; ante, vol. I., (o) E. S. 1881, ? 571. 425, and cases cited ; Busk. Prac. 279 ; (p) Hurd v. Earl, 4 Blkf. 184; Gaff May v. The State Bank, 9 Ind. 233. r. Hutchinson, 38 Ind. 341, 346; Little (s) R. S. 1881, 573; Briggs v. v. The Danville, etc., Plank Eoad Co., Sneghan, 45 Ind. 14; ante, \\ 455, 458. 18 Ind. 86; Shriver v. Bo wen, 57 Ind. 266. XXII.] JUDGMENT. G41 by her as the widow of the mortgagor, as there was no allegation in the complaint in foreclosure tending to negative her right to claim any part of the land as the widow.* There can not be a judgment by default while there is an issue of fact pending. The issue must be tried, but if the defendant fails to appear at 'the trial he thereby waives a jury trial, and the cause may be submitted to the court. T 993. On constructive notice. There can be no personal judg- ment rendered a'gainst a defendant on constructive service by publica- tion, without an appearance to the action either in person or by attorney. w Such a judgment is not only erroneous, but it is absolutely void, and a sale of real estate under it conveys no title. 1 Personal service out of the state has the same force as notice by publication, and the same rule applies. y Service by copy in this state is actual and not constructive notice, and personal judgment may be rendered thereon. 2 Where the action is local there may be a judgment in rem, on con- structive notice; but no personal judgment can be taken in connection therewith." But the court may award an execution on constructive service when a personal judgment has been properly rendered in the original action. 1 * Where a default is taken in an action in rem on constructive notice, the default does not admit the allegations of the complaint, therefore there can be no judgment without proof of the facts alleged. The court may also cause the plaintiff to be examined in open court under oath, not only as to his cause of action, but as to any matter of set-off or counterclaim, and his answers may be reduced to writing and filed with the papers in the cause. d (t) Unfried v. Heberer, 63 Ind. 67. 11 Ind. 383; Beard v. Beard, 21 Ind. (u) Ten-ill . The State, 68 Ind. 155. 321; Gibson v. Green, 22 Ind. 422; (v) Ante, vol. I., 829; Love v. Lytle v. Lytle, 48 Ind. 200. Hall, 76 Ind. 326. (z) Sturgis v. Fay, ,6 Ind. 429; (w) R. S. 1881, 390; Allen v. Cox. Ewing v. Ewing, 24 Ind. 468. 11 Ind. 383; Mitchell v. Gray, 18 Ind. (a) Mitchell v. Gray, 18 Ind. 123. 123; CavenHUgu v. Smith, 84 Ind. 380. (b) Gibson v. Green, 22 Ind. 422. (x) Sowders v. Edmunds, 76 Ind. (c) R. S. 1881, 387; ante, vol. L, 123. 457. (y) R. S. 1881, 319; Allen v. Cox, (d) R. S. 1881, 388. 41 642 JUDGMENT. [CHAP. In divorce cases, there can be no judgment without proof of the al- legations of the complaint. 6 994. Judgment in rem may be opened in five years. "Parties against whom a judgment has been rendered without other notice than the publication in the newspaper herein required, except in c.tses of divorce, may, at any time within five years after the rendition of the judgment, have the same opened and be allowed to defend. " f " Before any judgment shall be opened, such party shall give notice to the original complainant, or his heirs, devisees, executors, or ad- ministrators, of his intention to make application to have the judgment opened, as the court in term or the judge thereof in vacation shall re- quire ; and shall file a full answer to the original complaint, and an af- fidavit stating that, during the pendency of the action, he received no actual notice thereof in time to appear in court and object to the judg- ment ; and shall also pay all such costs of the action as the court shall direct." These two sections of the statute are not limited expressly to judg- ments in rem, but they must be so limited, as there can be no personal judgment without actual notice. 11 They can not be applied to cases where there has been personal serv- ice out of the state, nor to. cases where, although the notice was by publication, the defendant knew of the pendency of the action in time to object to the notice. The statute expressly requires that he shall make affidavit that he had not actual notice in time to object to the notice. The proper practice in this class of cases is not settled by authority. The notice of the application must be for such time as the court or judge may determine. The matter should be presented to the court or judge in the first instance by a petition stating the facts, accompa- nied by a full answer, and the. necessary affidavit. The court or judge should thereupon make an order fixing the length of time notice shall be given. The notice should be given in accordance with the direction of the court or judge ; should set out the facts stated in the petition, and the time when and the place where the application to open the judgment will be made. There may be some question whether the statute makes it necessary that the answer and affidavit shall be filed and presented with the pe- tition when an order fixing the time of giving notice is asked for, or (e) Scott v. Scott, 17 Ind. 309; ante, (g) R. S. 1881, 601. vol. I. ? 456. (h) Ante, 993. (f) R. S. 1881, 600. XXII.] JUDGMENT. 643 whether they may be filed afterward. The terms of the statute in this respect are not definite. But the safer and better practice is to file and present all of the necessary papers before giving the notice. Where there has been a sale of real estate under the judgment, and the same has passed into the hands of a purchaser in good faith, his title will not be affected by the proceeding to open the judgment.' 995. Judgment without notice. In order to the validity of a judgment, the court must have jurisdiction. If a personal judgment is rendered, the court must have jurisdiction of the person. If in rem, there must be jurisdiction of the subject-matter. In either case, there must be notice. In the one case by personal service, and in the other by personal service or constructive notice. Without such notice, a judgment by default, where there has been no appearance is absolutely void.-* The rule applies to sales of real estate by executors or administrators without notice to the heirs. k But it is held that, where there has been service, but for a shorter time than is required by law, the judgment is not void but erroneous or voidable. 1 A distinction is made between defective or irregular service and no service. The one gives the court jurisdiction, the other does not. Where the defendant has been served with process he has an opportu- nity to contest its sufficiency, and the court has jurisdiction to determine the question. If the court errs in holding the notice sufficient an ap- peal will lie, or if judgment is taken by default it may be set aside in the court rendering it, but it can not be attacked collaterally. It is otherwise where there is no notice. The judgment is a nullity, and may be attacked whenever and however the question of its validity may arise. Where the process is so defective as not to inform the de- fendant of the time or place when and where he is required to appear, this is equivalent to no notice, and will not uphold the judgment." 1 Where there is a cross-complaint filed by one defendant against an- (i) R. S. 1881, 602. len, 62 Ind. 401 ; The State v. Ennis, (j) Anderson v. Miller, 4 Blkf. 417; 74 Ind. 17; Johnson v. Ramsay, 91 Bliss v. Wilson, 4 Blkf. 169; Smith v. Ind. 189; Brown r. Goble, 97 Ind. 86. Myers, 5 Blkf. 223; Cochnower v. (k) Hawkins r. Hawkin?, 28 Ind. 66. Cochnower, 27 Ind. 253; Lee v. Back, (1) Helphoiistine v. The Vincennes 30 Ind. 148; Shoemaker, Auditor of National Bank, 05 Ind. 582; Freeman State v. The Board, e*c., of Grant on Judgment?, \ 120; Grimwood v. County, 36 Ind. 175; Packard v. Men- Macke, 79 Ind. 100; Stout v. Woods, 79 denhall, 42 Ind. 698; Middleworth v. Ind. 108; Muncie v. .lacst, 74 Ind. 409. McDowell, 49 Ind. 386; Brooks v. Al- (m) Fro -man on Judgments, 126, citing Kitsmiller r. Kitchen, 24 Iowa, 163; Me Alpine v. Sweetzer, 76 Ind. 78; McMullen v. The State, 105 Ind. 334. G44 JUDGMENT. [CHAP. other who is not before the court by actual appearance, either to the original complaint or the cross-complaint, and has no actual knowledge of the filing of the same, there can be no judgment on the latter without the proper notice." Where the matter set up in the cross-complaint is alleged in the original complaint as a part of the plaintiff's cause of action, no notice of the filing of the former seems to be necessary, nor is it when the defendant against whom the cross-complaint is filed is in court in per- son or by attorney, and has actual notice of the filing thereof. On appeal from a judgment by default the record must show, by the summons and return being set out therein, that the defendant has either appeared to the action or has been duly served with process, or the cause will be reversed. An express recital in the record that there was service of process is not sufficient. 1 * The summons and return need not be set out in the record of a jus- tice of the peace on appeal. Where a defendant refuses to discharge a rule to answer, judgment may be rendered against him as upon a default q A defendant may withdraw his appearance by leave of the court. By withdrawing his appearance he withdraws any pleadings he may have filed, and judgment may be taken by default. In such case the record must show the proper notice as in other cases/ 996. Judgment without defaulting the defendant. Before rendering judgment the defendant should be three times called and a default entered against him on the record. But the failure to call the party, or enter a default against him, does not render the judgment void. It is an error that must be reached by a motion for a new trial, and can not be presented for the first time in the supreme court. 8 It^ is held that the failure to enter the default, where it has been taken, is such an irregularity as the court below might amend, and it will be deemed amended in the supreme court.' It is said, in some of the cases, that the irregularity in not calling the defendant may be amended, as well as the failure to enter the (n) Swift r. Brumfield, 76 Ind. 472; (q) Kisher v. Morgan, 56 Ind. 172. Fletcher v. Holmes, 25 Ind. 458; Joyce (r) Smith v. Foster, 59 Ind. -L.95. u. "Whitney, 57 Ind. 550; ante, vol. I., (s) Smith v. Foster, 59 Ind. 595. 208. . (t) Key v. Robinson, 8 Ind. 368-, (o) Joyce r. Whitney, 67 Ind. 550; Shaw v. Binkard, 10 Ind. 227; Sloan Pattison v. Vaughan, 40 Ind. 253. 17. Wittbank, 12 Ind. 444; Smith 17. (p) Fee 17. The State, 74 Ind. 66; Foster, 59 Ind. 595. Eltzroth 17. Voris, 74 Ind. 459. XXII.] JUDGMENT. G45 default. This it is believed \va^ not intended. The record would un- doubtedly be amendable tj show the fact that defendant had been called. But the act of calling him certainly could not be the subject of amendment. The failure to default the defendant is not sufficient to review or re- verse the judgment." But it is otherwise where a default is taken on the first day of the term. v An act was passed March 21, 1879, by which it was attempted to legalize proceeedings by which defaults had been taken and judgments rendered thereon on the first day of the term of any circuit court prior to its enactment. w But the act is unconstitutional. 1 2. IN AN ACTION COMMENCED BY AGREEMENT. 997. Agreed case. An action maybe instituted by agreement of the parties, process being waived thereby, and the case allowed to proceed as in other cases, or the controversy may be submitted by agreement under the statute authorizing an agreed case, or judgment may be rendered by agreement. In the first of these cases, where the action is simply put in motion by agreement, the action must necessarily proceed to judgment as in other litigated cases. The practice in agreed cases has been consid- ered. y The agreed statement of facts takes the place of the pleadings, and judgment must be rendered in favor of the party entitled thereto, tak- ing the facts to be true. If the facts fail to show a cause of action in either party, there can be no judgment. 2 The affidavit required by the statute takes the place of process, and gives the court jurisdiction of the persons of the parties. 8 The court must be one that would have jurisdiction if the suit were brought as an adversary proceeding, or no valid judgment can be ren- dered. 15 998. Judgment by agreement. The parties may agree upon the judgment to be rendered, in which case the agreement is the basis of the judgment, and it must conform thereto, although under the plead- (u) Doherty v. Chase, 64 Ind. 73. (y) Ante, vol. I., 811, 812,813; R. (v) Mitchell v. McCorkle, 69 Ind. S. 1881, 553. 184. (z) Gregory v. Purdue, 29 Ind. 66. (w) Acts 1879, p. 116. (a) Ante, vol. I., 812. (x) Mitchell v. McCorkle, 69 Ind. (b) R. S. 1881, 553. 184 646 JUDGMENT. [CHAP. ings no such judgment could be rendered without the consent of par- ties. c The judgment has the same force as other final judgments of the court, and, in the absence of fraud, is binding upon junior incum- brancers or others interested in the property affected by the judgment.* 1 An agreement on the part of the defendant that judgment may be rendered against him without pleading is a waiver of his right to plead, is an admission of the truth of the averments of the complaint, and waives defects therein. 6 3. BY CONFESSION, WITHOUT AN ACTION. 999. Offer to allow judgment/ 1 ) The defendant may, after suit brought, offer to allow judgment. The statute provides: " The defendant may, at any time before trial, serve upon the plaint- iff an offer to allow judgment to be taken against him for the sum or property, or to the effect therein specified, with costs. If the plaintiff accept the offer in court, in the presence of the defendant, or give no- tice of acceptance in writing within five days and before the trial, judg- ment shall be entered accordingly. Tf the offer is not accepted, or no- tice of acceptance be not given as above directed, the offer is to be deemed withdrawn, and shall not be given in evidence or commented on before the jury, and if the plaintiff fail to obtain a more favorable judgment, the defendant shall recover from the plaintiff the costs oc- casioned subsequent to the time of the offer. " f Under this section, the offer to allow judgment can not be made until an action is pending. 8 No previous notice is provided for. It is only necessary to serve the plaintiff with the offer. Both parties being in court, no notice of the time and place of making the offer is necessary. (2) The offer must fix the amount for which judgment will be confessed, and must embrace all costs up to the time of and including the enter- ing of the judgment, if it is accepted. 11 The offer need not in express terms include the cost of rendering judgment. Thus it is held that an offer to confess judgment for a given sum and " accrued costs" is sufficient.' (c) Fletcher v. Holmes, 25 Ind. 458. (g) Homer v. Pilkington, 11 Ind. (d) Fletcher v. Holmes, 25 Ind. 458 ; 440. Applegate v. Edwards, 45 Ind. 829. (h) Barter v. Comstock, 11 Ind. 525; (e) Robinson v. Starley, 29 Ind. 298 ; Holland v. Pugh, 16 Ind. 21 ; Harris*. Hudson v. Allison, 54 Ind. 215; Lyon Dailey, 16 Ind. 183. v. Roy, 54 Ind. 300. (i) Holland v. Pugh, 16 Ind. 21. (f ) R. S. 1881, ? 514. (2) Keller v. Allee, 87 Ind. 252. (1) Form of offer, Vol. 3, p. 441. XXII.] JUDGMENT. 647 So of an offer for a certain sum, " with costs accrued to the present time." j And for an amount "and costs." k But these must be held sufficient on the ground that an acceptance Avould bind the defendant to pay all costs, if judgment should be ren- dered on the offer. The offer may be served on the plaintiff's attorney of record. 1 The plaintiff may accept the offer in open court or by serving a writ- ten notice of acceptance within five days. If the offer is accepted, the judgment follows as of course, and must conform in all respects to the offer, as it forms the basis of the judgment. If the offer is not ac- cepted within the five days, the action proceeds as if it had not been made, and if the plaintiff fails to recover an amount greater than that named therein, he must pay all costs that have accrued since the offer was made. An offer to allow judgment before a justice continues in force on appeal. 1000. Offer to confess judgment/ 1 ) The statute authorizes a party who is liable to an action to go into the court where he resides, or of the residency of the party having the cause of action, and offer to confess judgment before suit is brought. Notice must be given the creditor of the time and place of making the offer ten days before the first day of the term of court." If the offer is made at the time and place named in the notice, the creditor must accept during the term of court or pay all costs of an action thereon, if he recovers no more, and the defendant is not bound by his offer as an admission of the amount due. The right given by this section of the statute is one rarely resorted to in practice. 1001. Confession of judgment; in person. "Any person indebted, or against whom a cause of action exists, may personally ap- pear in a court of competent jurisdiction, and, with the consent of the creditor, or person having such cause of action, confess judgment therefor, whereupon judgment shall be entered accordingly." p " The debt, or cause of action, shall be briefly stated in a writing, to (j) Rose v. Grinstead, 53 Ind. 202; (n) Homer v. Pilkington, 11 Ind. Keller v. Alice, 87 Ind. 252. 440. (k) Harris v. Daik-y, 1(5 Ind. 183. (o) R. S. 1881, 2 515. (1) Holland v. Puj/h, 16 Ind. 21. (p) K. .S. 1881, \ 586. (m) Lewis v. Morrison, 10 Ind. 394. (1) Form of offer, Vol. 3, p. 442. 648 JUDGMENT. [CHAP. be filed and copied into the judgment. The confession shall operate as a release of errors." q Under these sections of the statute there must be a consent to the confession of judgment by the party having the cause of action. Without his consent the judgment is of no force unless ratified by him. r By virtue of section 587 the confession of judgment waives errors. Thit where the court has no jurisdiction of the subject-matter, the judgment is void, and the want of jurisdiction can not be cured by the consent of the parties. 8 So where the judgment is void for other causes.* It is only where the judgment would be voidable, or erroneous, for some cause, that the statute will cure the defect." It is 'required that a statement of the cause of action shall be filed in writing. 7 The statement should describe the cause of action as would be re- quired in a complaint, and may properly be in the same form. w It is held that this section does not apply where a complaint is filed. 1 TJie affidavit. The statute requires that " whenever a confession of judgment is made by power of attorney, or otherwise, the party con- fessing shall, at the time he executes such power of, attorney, or con- fesses such judgment, make affidavit that the debt is just and owing, and that such confession is not made for the purpose of defrauding his creditors. The affidavit shall be filed with the court." y The provisions of this section are for the prevention of fraud. The affidavit is not necessary to the validity of the judgment as between the parties thereto/- Where there is no affidavit, or one not in substantial compliance with the statute, the judgment is absolutely void as against creditors/ And although the necessary affidavit is filed, the judgment may be impeached for fraud by creditors. 1 * (q) K. S. 1881, 587. (w) Freeman on Judg., 549; Igle- (r) Haggarty v. Juday, 58 Ind. 154 ; hart's Prac., p. 274. Barnett v. Juday, 38 Ind. 86; Kennard (x) Stebbens v. Cubberly, 10 Ind. v. Carter, 64 Ind. 31; Freeman on 301. Judg., 548. (y) R. S. 1881, g 588. (s) Marsh v. Sherman, 12 Ind. 358; (z) Kennard v. Carter, 64 Ind. 31; Freeman on Judg., 547. Mavity v. Eastbrid-c, 67 Ind, 211; (t) Dawson v. Wells, 3 Ind. 398 ; Hopper v. LUI-MS, 80 1 nd. 43. Eastwood v. Buel, 1 Ind. 434. (a) Ex jimus Knight, 4 Blkf. 220; (u) Thatcher v. Coleman, 5 Blkf. 76. Feaster r. \\udfill, L'3 Ind. 493; . (v) R. S. 1881, 587. Mavity r. l.u=ibi-itl-e, 67 Ind. 211. (b) Bruner 0. Manville, 2 Blkf. 485. XXII.] JUDGMENT. 649 Where the cause of action is set forth in the complaint, it need not be described in the affidavit/ 1002. Confession by attorney. Judgment may be confessed by a third party, having the proper power of attorney. The same af- fidavit is required as in a confession in person. d The failure to make and file the necessary affidavit is cause for re- versal. The warrant or power of attorney must be executed according to the requirements of the statute in force, and must sufficiently describe and identify the cause of action. f But it has been held that where the warrant authorized the eonfes- sion of judgment at a certain term, in favor of a certain person, for a certain sum, in an action of debt, a jiftlgment rendered thereon was not erroneous because the particular debt was not described. g Where the cause of action is properly set forth in -the complaint, it is sufficient if the warrant identifies it as the same. h Where there is no appearance by the defendant, and there has been no personal service, no judgment can be rendered on the agreement of an attorney, except upon written authority given him to consent to such judgment.' Where the warrant of attorney is to A., " or any other attorney. of the court in which the judgment is to be confessed," the confession may be in the name of any attorney of the court. J A power of attorney to confess judgment can not be revoked by the party giving it. k 1003. The judgment. Where the judgment is rendered on the personal confession of the defendant, it must be rendered in accordance with the confession as consented to by the party having the cause of action. Where the confession is by a warrant of attorney, the judgment must conform strictly to the authority therein given. 1 The warrant of attorney should be set out in the record, immediately (c) Clouser v. March, 15 Ind. 82. (h) Gambia v. Howe, 8 Blkf. 133. (d) R. S. 1881, 588; McPheters v. (i) Jarrett v. Andrews, 19 Ind. 403. Campbell, 5 Ind. 107. (j) Patton v. Stewart, 19 Ind. 233. (e) Aldrich v. Minard, 12 Ind. 551. (k) Kindig r. March, 15 Ind.. 248; (f ) McPheters v. Campbell, 5 Ind. Eldridge v. Falwell, 3 Blkf. 207. 107; Veach v. Pierce, G Ind. 48; (1) Harris r. Stanton, 4 Ind. 120; Gambia v. Howe, 8 Blkf. 133. Miller r. Macklot, 13 Ind. 217; Mason (g) Eldridge v. Falwell, 3 Blkf. 207. v. Smith, 8 Ind. 73. C50 JUDGMENT. [CHAP. preceding the judgment, and the two are equivalent to a finding and judgment. The section of the statute providing that a confession of judgment waives errors applies to personal confessions, and not to those founded on warrants of attorney." But where the warrant of attorney contains a release of errors, the judgment defendant is bound thereby. A judgment of foreclosure may be confessed under a warrant of at- torney. 15 There can be no valid judgment rendered upon a written agreement fixing the amount and consenting that judgment may be rendered therefor, where there is no appearance in person or by attorney, or service of process on the parties who execute such consent. The court has not jurisdiction of the persons, and can render no valid judgment.* 1 FORM OF JUDGMENT. 1004. Generally. No precise \vords are necessary to constitute a judgment. It must be tested rather by its substance than its form/ But there are certain words that have almost invariably been used that should not be omitted. Thus the words " it is considered by the court that the plaintiff recover " are held to be peculiarly appropriate to show that what is to follow is the act of the law and not of the judges. 9 And in Indiana these or equivalent words must be used to constitute a valid judgment.' It is held in the case of Needham v. Gillaspy, that the word "'re- cover" is necessary to constitute a valid judgment for the recovery of money, and the amount of the recovery must be stated, and that in other cases the words used must be appropriate to the relief granted. There are numerous cases in other states holding that neither the word " recover" nor " considered" is necessary to the validity of a judgment." And our statute expressly provides that the word "judgment" means all final orders, decrees, and determinations in an action ; also all or- ders upon which executions may issue. 7 (m) Miller v. Macklot, 13 Ind. 217. Stanton, 4 Ind. 120; Conley v. Tracy, (q) McPheters v. Campbell, 5 Ir.d. 4 Ind. 137; a-;te, vol. I., 224, 225. 107 ; Miller v. Macklot, 13 Ind. 217. (r) Freeman on Judg., 47. (o) Miller v. Macklot, 13 Ind. 217; (s) Freeman on .hids*., 46- Boyd v. Crary, 35 Ind. 363. (t) Needham v. Gillaspy, 49 Ind. (p) Allen v. Parker, 11 Ind. 504. 245; ante, \ 976. (q) Ferrand v. McClease, 1 Ind. 87; (u) Freeman on Judg., 50, 51, 52. Craig v. Glass, 1 Ind. 89; Harris v. (v) R. S. 1881, 1285. XXII.] JUDGMENT. G51 The judgment, in stating the amount of recovery, should include the interest to the date of verdict of the jury or finding of the court. w It has been held that a verdict for a certain sum, with interest from a fixed date, is sufficient. x Where such a verdict is rendered, the interest should be computed to the date of the judgment and included in the amount of the re- covery. Where the verdict includes the interest, the judgment should be for the same amount. Under the present statute, interest is allowed on the amount found by the verdict from its date, and not from the date of the judgment; but the interest accumulating on the verdict should not be included in the judgment, as this would be to compel the judgment defendant to pay interest on the interest from the date of the verdict to the rendi- tion of the judgment.* In some of the earlier cases it was held that the interest in an action of debt must be separately stated, the form of the judgment being the sum of dollars in debt, and the sum of dollars in damages. 1 But this is unnecessary under the present practice. Under a former statute, it was required that the judgment should specify therein the rate of interest it bore. a This is now unnecessary, as all judgments are made by statute to bear six per cent per annum. b Some of the forms of judgments peculiar to particular cases will be more fully noticed in the following sections, and in subsequent chap- ters, in connection with the subjects therein considered. (1) 1005. Arbitration and award. The statute authorizes the sub- mission of matters of difference to arbitrators. And the parties may agree to make the submission a rule of court. d The statute provides that " upon the return of the rule the court shall confirm the award and render judgment thereon, unless the award be vacated, or modified, or postponed, as herein provided ; which judgment shall have the same force and effect as a judgment in other cases." e (w) Stanton v. Woodcock, 19 Ind. (a) R. S. 1876, p. 600, n. 1 ; Smith v. 273. Fatman, 71 Ind. 171. (x) Gaff . Hutchinson, 38 Ind. 341 ; (b) R. S. 1881, \ 6199. ante, vol. I., 837. (c) R. S. 1881, 830. (y) R. S. 1881, 5199 ; ante, vol. I., (d) R. S. 1881, 832. 981. (e) R. S. 1881. 843. (z) Stevens v. Dunbar, 1 Blkf. 56. (lj Forms of judgments, Vol. 3, pp. 439-474. 652 JUDGMENT. [CHAP. The award of the arbitrators is regarded under the statute as the verdict of a jury. f Before judgment can be rendered, the submission and award must be entered of record, a rule issued thereon to show cause be duly granted and served, and the award confirmed. 8 The judgment must conform to the award as in case of a verdict, but interest may be included therein from the date of the award. h 1006. Attachment. In attachment proceedings there may be a personal judgment, and a judgment in ran. But before a personal judgment can be taken against any defendant, he must be personally served or appear to the action. 1 And there can be no judgment, either against the defendant or the property attached, except : First. When the defendant shall have been personally served with process. Second. When property of the defendant shall have been attached in the county where the action is brought. Third. When a garnishee shall have been summoned in the county where the action is brought, who shall be found to be indebted to the defendant, or to have assets in his hands subject to the attachment. The judgment of the court against the property should be that so much of the property attached as will satisfy the judgment be sold. k It is held that the plaintiff can not have judgment for more than the amount claimed in his affidavit, and interest thereon. 1 The statute authorizes a judgment by default against the garnishee, who fails to appear, when duly summoned, and answer or demur." 1 But there can be no final judgment against him until the determi- nation of the main action in favor of the plaintiff." The judgment against the garnishee. must be that he pay over the moneys in his hands belonging to the attachment defendant, as required by his contract with such defendant. Judgment may be taken against him for an amount not yet due, but the order must be for the payment (f ) Dickerson r. Hays, 4 Blkf. 44. (j) R. S. 1881, 919.' (g) R. S. 1881, H 84-2, 843; Healy v. (k) Harlow v. Becktle, 1 Blkf. 237; Isaacs, 73 Ind. 226. The Steamboat Tom Bowling v. Hough, (h) Kintner v. The State, 3 Ind. 86. 5 Blkf. 188. (i) R. S. 1881, 919; Henrie v. (1) Henrie v. Sweasey, 5 Blkf. 273. Sweasey, 5 Blkf. 335 ; Collins v. (m) R. S. 1881, 934. Nichols, 7 Ind. 447; King v. Vance, (n) R. S. 18fcl, 936. 46 Ind. 246. XXII.] JUDGMENT. (553 of the money when due. He can not be compelled to pay otherwise than as required by the terms of his contract. But where the indebtedness is upon a note governed by the law-mer- chant, it must be shown that the note has matured and was at the time it fell due in the hands of the attachment defendant, or not in the hands of an innocent holder. p Where other creditors " file under" in the attachment proceedings, the judgment against the property should order the sale thereof, and payment of the proceeds into court to be distributed pro rota upon the claims proved, after payment of costs. There can be no order of distribution until the claims are all disposed of. The several claims are, so far as the attachment proceeding is concerned, but one suit, and all of the claims should be disposed of by the final order of distribution. q To uphold the attachment lien after judgment, there- must be a special judgment ordering the sale of the property attached and a special order of sale thereon. A personal judgment is not sufficient, and when taken alone is an abandonment of the lien under the writ of attachment/ We have a special statute authorizing the enforcement of a lien upon boats and other water-crafts. The suit is instituted, and judgment may be rendered against the boat. But the statute authorizes the de- fendant (master, owner, or consignee) to give an undertaking which has the effect to release the boat, and such defendant must be made a party to the action, and personal judgment may be taken' against him, but there can be no order for the sale of the boat. 3 It is error to render judgment, personally, against the surety upon the undertaking. It is only against the " master, owner, or consignee" that a personal judgment is authorized in the original action.' 1007. Bastardy. The judgment in a bastardy proceeding is not one for the state, nor is it for the relatrix, the mother, but for the main- tenance of the child. The judgment should, therefore, be for the amount the court may find to be necessary for the .child's maintenance, (o) King v. Vance, 46 Ind. 24G. (s) R. S. 1881, ? 5277, 5280, 5283 ; (p) Cleneay v. The Junction li. R. Brayton v. Freese, 1 Ind. 121 ; Jones v. Co., 26 Ind. 375; King v. Vance, 46 Gresham, 6' Blkf. 291; Carson v. The Ind. 246; Drake on Attachment, $ Steamboat Talma, 3 Ind. 1<>4; The 587, 588. La\vrenc,'burgh Ferry Boat v. Smith, (q) R. S. 1881, 949; Henderson v. 1 Ind. 520; Canal Boat Standart c. Uliss, 8 Ind. 100; Compton v. Crone, Bond, 8 Ind. 270. 58 Ind. 106. (t) Euntz v. Bright, 12 Ind. 313. (r) Lowry v. McGee, 75 Ind. 508. 651 JUDGMENT. [CHAP. and costs. Damages for the seduction of the mother or the expenses of her lying in can not be recovered." The money recovered belongs to the person who has the legal cus- tody of and maintains the child. v The judgment may require that the sum shall be paid in annual in- stallments, the amount of each installment and time of payment to be fixed therein. w Where the child has been apprenticed by the mother, neither she nor the party to whom it is apprenticed can recover for its maintenance. But the mother may have judgment for the time she has maintained the child before it was apprenticed.* Where the child has been taken from the custody of the mother and has a guardian, the guardian is entitled to any money that may be due on the judgment for the use and benefit of the child. y There can be no valid judgment of dismissal without the admission of the mother in open court, entered of record, that provision for the maintenance of the child has been made to her satisfaction. 2 But when the admission is properly made and entered of record, a dismissal of the cause may be pleaded as a former adjudication. 8 There can be no judgment against the defendant where the child is shown to have been still-born. b The defendant may waive an examination before the justice, in which case a judgment requiring his appearance at the next term of the circuit court is sufficient, without a formal judgment that he is the father of the child, and without an examination of the mother. The judgment of the circuit court should require the defendant to re- plevy the judgment, and upon failure, that he be committed to jail. d But this can only be done where the defendant is in custody. 6 1008. Against executors, administrators, and guardians. A judgment in an action against an administrator or executor, as (u) K. S. 1881, 992; Allen v. The (y) Heritage v. Hedges, 72 Ind. 247. State, 4 Blkf. 122; Neff v. The State, (z) Beeves v. The State, 37 Ind. 3 Ind. 564; Dickerson v. Gray, 2 Blkf. 441 ; Harness v. The State, 57 Ind ] ; 230; Canfield v. The State, 56 Ind. 168. Fisher v. The State, 65 Ind. 51. (v) Bright v. Sexton, 18 Ind. 186; (a) Britton v. The State, 54 Ind. Marlett v. "Wilson, 30 Ind. 240; Herit- 535. age v. Hedges, 72 Ind. 247. (b) Canfield v. The State, 56 Ind. (w) K. S. 1881, 992; Cooper v. The 168. State, 4 Blkf. 316; Beeman v. The (c) Smith w. The State, 67 Ind. 61. State, 6 Blkf. 165. (d) Hawley v. The State, 69 Ind. 98. (x) Young v. The State, 53 Ind. 536. (e) Patterson v. Pressly, 70 Ind. 94. XXII.] JUDGMENT. 655 such, should be against the estate he represents, and not against him personally. But where the judgment is rendered against him personally, it is a defect in form that may be amended. d The defect can not be reached in the supreme court. There must be a motion to correct the judgment in the court below. e The judgment should require that the amount found be paid by the executor or administrator in the due course of administration/ And there can be no execution thereon except where the judgment directs the sale of specific property. 8 In an action to compel an administrator to charge himself with ad- ditional property, the judgment must be against him personally. But he can not be compelled by the judgment to give bond to secure the additional property with which he is- required to charge himself. h Administrator de son tort. In an action by a creditor or an estate against an administrator de son tort, there can be no personal judgment against the iutermeddler. The judgment should be that he account to the proper court for the value of the property, and ten per centum thereon.' Without relief. The statute authorizes a judgment without relief against an executor, administrator, or guardian, and their sureties, for any breach of duty, or for money or property received in their fiduci- ary character.-" Ten per cent damages in action on bond. In actions on the bonds of executors and administrators the judgment may include ten per cent damages on the amount recovered.*- In suits upon guardians' bonds the same rule prevails generally. 1 But by subdivision 3 of section 2521 of the statute, certain specific duties are required of guardians ; and where the action is for a failure to comply with the provisions of this subdivision, the judgment should (c) Songer r. Walker, 1 Blkf. 251 ; (f ) Johnson v. Meier, 62 Ind. 98. Priest u.Martin, 4 Blkf. 311; Wilt v. (g) R. S. 1881, 682; Johnson v. Bird, 7 Blkf. 258 ; Phipps v. Addison, Meier, 62 Ind. 98. 7 Blkf. 375; Egbert v. The State, 4 (h) Pea v. Pea, 35 Ind. 387. Ind. 399; Lewis v. Reed, 11 Ind. 239; (i) Goff v. Cook, 73 Ind. 351; Mc- Boyls v. Simpson, 23 Ind. 393; Stein- Coy v. Payne, 68 Ind. 327. metz v. The State, 47 Ind. 465; Huston ( j) R. S. 1881, 577; post, 1014. v. Stewart, 64 Ind. 388; Fessler v. (k) R. S. 1881, 2459. Grouse, 73 Ind. 64. (1) Baldridge v. The State, 69 Ind. (d) Songer v. Walker, 1 Blkf. 251; 166; Colburn v. The State, 47 Ind. Lewis v. Reed, 11 Ind. 239. 310. (e) Carter v. Zenblin, 68 Ind. 436- post, 1030. 656 JUDGMENT. [CHAP. include ten per cent on the ivhole amount of estate, botii real and personal, in his hands belonging to the ward. lu the case of Richardson v. The State, the measure of damages fixed by section 2521 was held to apply in all cases, but the later case of Baldriuge v. The State limits the rule as above stated, and expressly everrules the earlier decision to that extent. On. reports. An^order of court approving or disapproving the report of an executor or administrator or guardian is a judgment. If a par- tial report the judgment is interlocutory, if final it is a final judgment." A partial report when approved is prima facie correct. It is subject to revision at any time before final settlement, in a direct proceeding for that purpose, but can not be attacked collaterally. Objections to the partial report may be made on exceptions to the report in final settlement. p Final settlements are conclusive, and can not be directly attacked, unless, within the statute of limitations, for fraud or mistake. q There is an exception in favor of the sureties on the bond of the executor, administrator, or guardian. Their liability can not be in- creased by any admissions or statements in the reports, whether partial or final; and they may controvert the correctness thereof in their defense of an action on the bond. 1 " It was held otherwise in a number of earlier cases. 8 But these cases were expessly overruled in the case of Lowryv. The State, supra. By a final report is not meant the last report of the particular ad- ministrator who has been discharged, but the report in final settlement of the estate. 1 And in case of a guardian, the settlement must be of such a nature (m) R. S. 1881, 2521; Richardson (q) Camper r. Hayeth, 10 Ind. 528; v. The State, 55 Ind. 381; Bescher v. Reed v. Reed, 44 Ind. 42 J; Holland v. The State, 63 Ind. 302, 321; Baldridge The State, 48 Ind. 391 ; Sanders v. Loy, v. The State, 69 Ind. 166. 61 Ind 298; Peacock v. Leffler, 74 Ind, (n) Sanders v. Loy, 61 Ind. 298; 327; Candy v. Hanmore, 76 Ind. 125. Parsons v. Mil ford, 67 Ind. 489; Hoi- (r) Lowry v. The State, 64 Ind. 421 ; land v. The State, 48 Ind. 391 ; Candy Cogswell v. The State, 65 Ind. 1 ; Candy r. Hanrnore, 76 Ind. 125. v. Hanmore, 76 Ind. 125; Ohning v. (o) Goodwin v. Goodwin, 48 Ind. The City of Evansville, 66 Ind. 59. 584; The State v. Brutch, 12 Ind. 381 ; (s) The State v. Gramer, 29 Ind. 530; Barnes v. Bartlett, 47 Ind. 98; Fraim Bagot v. The State, 33 Ind. 262; Wil- n. Jlillison, 59 Ind. 123; Parsons v. mer v. The State, 44 Ind. 223; The Milford, 67 Ind. 489 ; Candy v. Han- State v. Prather, 44 Ind. 287. more, 76 Ind. 125. (t) Dufour v. Dufour. 28 Ind. 421. (p) Collins v. Tilton, 58 Ind. 374. xxn.] JUDGMENT. 657 as to fully discharge him from his trust and all duties in regard thereto, arid leave nothing to be done by him in his fiduciary capacity." It is held that in an action against a guardian, upon a contract made by him touching his ward's estate, the judgment should be against him personally. 7 1009. Foreclosure of mortgages. The statute authorizes a personal judgment to be taken against any party to the suit liable upon any agreement for the payment of any sum or sums secured by the mortgage. w To authorize a personal judgment, the party liable must appear to the action or be served with personal process. Where there is no order or judgment for any deficiency that may remain unpaid after the sale of the land mortgaged, there is no per- sonal judgment. 1 There can be no personal judgment for an amount not yet due. Therefore in an action for the foreclosure of a mortgage securing different installments of an indebtedness, some of which are due and some not due, the court can only order at what time and upon what default any subsequent execution shall issue for the amounts not yet due. There can be no personal judgment therefore But a personal judgment for a debt not due, although erroneous, is not void and can not be collaterally attacked. 2 "Where. a part of the indebtedness is not due, the court should ascer- tain whether or not the land can be sold in parcels without injury to the parties ; and, if so, must direct that so much only of the premises be sold as will be sufficient to pay the amount due with costs.* But where the proof shows that the land can not be divided and sold in parcels, without injury to the interests of the parties, the court may order it sold in solido, although it consists of several distinct tracts. 1 ' If a part of the real estate has been sold, or incumbered, since the recording of the mortgage, to different parties, and a part is still owned by the mortgagor, that part still owned by him should be ordered to be (u) Angevine v. Ward, 66 Ind. 460; (z) Gall v. Fryberger, 75 Ind. 98. Parsons v Milford, 67 Ind. 489. (a) R. S. 1881, 1103; Wainscott r. (v) Stevenson v. Bruce, 10 Ind. 397; Silvers, 13 Ind. 497; Harris v. Make- Lewis v. Edwards, 44 Ind. 333. peace, 13 Ind. 560; Knarr v. Conaway. (w) R. S. 1881, \ 1097. 42 Ind. 260; Griffin v. Reis, 68 Ind. '. : (x) Buckinghouse v. Gregg, 19 Ind. Hannah v. Dorrell, 73 Ind. 465 ; Shot'* 401. v. Boyd, 77 Ind. 223. (y) R. S. 1881, I 1102; Skelton v. (b) Firestone v. Klick, 67 Ind. 309. Ward, 51 Ind. 46. 42 658 JUDGMENT. [CHAP. first sold, and the other tracts in the inverse order of the sales or in cumbrances. In an action against the heirs and administrator of a deceased raort gagor, there can be no personal judgment against either/ Under the present statute, the administrator or executor can not be sued jointly with other persons, and no judgment can be taken against the estate, except by filing the indebtedness, whether secured by mortgage or not, as a claim against the estate. 6 But this does not affect the right of the mortgagee to foreclose, and sell the land for the satisfaction of the debt as against the heirs. When a deed, absolute on its face, is sued upon as a mortgage, the judgment should declare it to be a mortgage, and a judgment of fore- closure be rendered thereon. To declare the deed absolute is error/ The sale of the land must be ordered in all cases of foreclosure^ If there is no express agreement in the mortgage, nor any separate instrument given for the sum secured thereby, the remedy of the mort- gagee must be confined to the property mortgaged, and there can be no personal judgment. 11 The fact that no personal judgment is taken in a case where it would have been proper, does not affect the validity of the judgment in rem. 1 1610. Vendor's lien. The right of the plaintiff, in an action for purchase-money for real estate, to have the amount found due declared a lien upon the real estate is based upon the fact that the defendant has not personal property subject to execution sufficient to satisfy the claim. It is held, however, that the complaint need not allege this fact; but, where it does not, it is error to render judgment for the sale of the land in the first instance. The judgment should order that the de- fendant's personal property subject to execution be first exhausted, and that, upon failure to realize sufficient to satisfy the amount found due, the real estate, or so much as may be necessary, be sold to pay the same.J If it is alleged in the complaint, and proved on the trial, that the (c) Day v. Patterson, 18 Ind. 114; (f ) Smith v. Brand, 64 Ind. 427. Williams v. Perry, 20 Ind. 437; Aiken (g) R. S. 1881, g 575. v. Bruen, 21 Ind. 137; Alsop u Hutch- (h) R. 8. 1881, gg 1087, 1096: inrris, 25 Ind. 347; Houston v. Houston, Fletcher v. Holmes, 25 Ind. 458. 67 Ind. 276; Hohn v. Behrman, 73 Ind. (i) Truitt v. Truitt, 38 Ind. 16. 120; McCallum v. Turpie, 32 Ind. 146. ( j) Scott v. Crawford, 12 Ind. 410; (d) Newkirk v. Burson, 21 Ind. 129; Bowen i: Fisher, 14 Ind. 104; Stevens Rodman v. Rodman, 64 Ind. 65. v. Hurt, 17 Ind. 141. (e) R. S. 1881, gg 2310, 2311, 2312. xxn.] JUDGMENT. C59 defendant is insolvent, or has not personal property subject to execu- tion sufficient to pay the debt, the sale of the real estate in the first instance may be ordered. k The vendor's lien is not an original and absolute charge on the land, but only an equitable right to resort to it in case there be no sufficient personal estate. If, therefore, the original purchaser, or any person for him, has be- come personally liable for the debt by executing his note therefor, or ortherwise, this personal liability must be exhausted, or it must be shown that he is totally insolvent, before there can be a judgment or- dering the sale of the real estate in the hands of a subsequent pur- chaser, although he purchased with notice of the lien. 1 ion. Against heirs for debt of ancestor. The statute au- thorizes proceedings against heirs for the debt of the ancestor, in cer- tain cases. If the property descended to the heirs is real estate, and is still owned by them, the judgment must be for the sale of such real estate." But where the heir has alienated the real estate in good faith, there can be no judgment for the sale thereof; but personal judgment may be takeruagainst such heir for the amount of the indebtedness due from him, the amount of the judgment not to exceed the value of such real state. The judgment against any heir, or his property, should not exceed his proportionate share of the indebtedness, unless the others are be- yond the reach of process. 1 * But where, by the will, any part of the real estate, or any one of the devisees or legatees are made liable for the debts of the estate, the judgment should conform to the provisions of the will in this re- spect, i Where any defendant has alienated the real estate received by him, but the same is still liable, the other property of such defendant should be first exhausted, and the judgment should so order/ 1012. Judgment without relief. The words "without relief in any judgment, contract, execution, or other instrument of writing (k) Bowen v. Fisher, 14 Ind. 104; (n) R. S. 1881, 2444. Stevens v. Hurt, 17 Ind. 141. (o) R. S. 1881, g 2445. (1) Martin v. Cauble, 72 Ind. 67. (p) R. S. 1881, 2447; Rinard v. (m) R. S. 1881, 2442; Faulkner v. West, 48 Ind. 159. Larrabee, 76 Ind. 154; ante, vol. I., (q) R. S. 1881, 2448. 2 423, and cases cited. (r) R. S. 1881, 2446. 660 JUDGMENT. or record, shall be taken, held, and deemed to mean " without the ben- efit of valuation laws." 3 The right to sell without relief depends upon the judgment. The right to render judgment without relief depends upon the contract, or some direct statutory provision authorizing judgment in that form. 4 The statute provides : " When a judgment is to be executed without relief from appraisement laws, it shall be so ordered in the judgment. When a plaintiff has included in one action demands subject to the appraisement laws, with demands made payable without any relief from appraisement laws, the court may render separate judgments upon such demands."" In order to authorize separate judgments, as required by the statute, the amount due upon each cause of action must be ascertained by the verdict or finding of the court. Otherwise the judgment must be with relief upon the whole amount." Where the judgment for the debt may be without relief the judg- ment for costs in the same form is proper. w In criminal cases the judgment can not be rendered without relief. r Property conveyed by a debtor, with intent to hinder, delay, or de- fraud creditors, may be sold without appraisement. 7 This provision of the statute only authorizes a judgment ordering the sale of the specific property without relief, and does not apply to an action to recover a personal judgment for the value of the property. 2 That a judgment on a claim against an estate is without relief is a harmless error, as no execution can issue thereon. a Objection to the rendition of judgment without relief must be made at the time or it is waived. b Judgments by or against plank, macadamized, or gravel roads may be without relief. In an action for tort the judgment can not be rendered without re- lief.- 1 (s) K. S. 1881, \ 1286. (y) K. S. 1881, 743; Whitehall v. (t) Eeilly ?. Ellsworth, 11 Ind. 222; Crawford, 37 Ind. 147. Shirk v. Wilson, 13 Ind. 129; Cum- (z) Whitehall v. Crawford, 37 Ind. mings v. Pfouts, 13 Ind. 144; Hay- 147. woith v. The Junction R. K. Co., 13 (a) Anderson v. The Greensburg, Ind. 348; Baker v. Roberts, 14 Ind. etc., Turnpike Co., 48 Ind. 467. 552; Ham v. Greve, 41 Ind. 531. (b) Johnson v. Prine, 55 Ind. 351. fu) R. S. 1881, 576. (c) R. S. 1881, 3646; Steinmeitz v. (v) Jarboe v. Brown, 39 Ind. 549. The Versailles, etc., Turnpike Co., 57 (w) Martindale v. Tibbetts, 16 Ind. Ind. 457. 200. (d) Smith v. Davis, 58 Ind. 434. (x) Croy v. The State, 32 Ind. 384. xxn.] .HMXJMKXT. 661 Where a surety has been compelled to pay the debt of his principal which was collectible without relief, the judgment in favor of such surety against the principal, for the amount so paid, may be in the same form. 6 1013. Against public officers and others acting in a fidu- ciary capacity ; -without relief or stay. " Hereafter all judg- ments recovered against any sheriff, constable, or other public officer, administrator, executor, or any other person or corporation, or the sureties of any or either of them for money collected or received in a fiduciary capacity ; or for a breach of any official duty ; or for money or other articles of value held in trust for another, shall be collectible without stay of execution or benefit of the valuation or appraisement laws of this state." f Where the cause of action falls within the provisions of this section it must be provided in the judgment that the same is collectible with- out relief or stay. The statute applies to suits upon the bonds of public officers, execu- tors, administrators, and guardians. 8 We have another statute, however, which provides that in an action against an executor or administrator on his bond no stay of execution or benefit of valuation or appraisement laws shall be allowed as to the property of the principal. h The discrepancy between the two sections will be noticed. Under the general provision of the code the judgment may be without re- lief or stay as against both the prinipal and surety ; ' while, under the special act regulating the settlement of decedents' estates, the right is confined to the property of the principal. The general provision is am- ply broad enough to cover all that is contained in the special section, and goes farther by authorizing the same form of judgment against the surety. Both of the acts went into force at the same time. The general provision of the code has been held to apply to suits on guardians' bonds, and they, by an express provision of the statute, are governed by the law authorizing suits on the bonds of executors and administrators^ It seems clear, therefore, that, in a suit on the bond of an executor, (e) R. S. 1881, 1217. See further (i) R. S. 1881, 577. as to appraisement, post, 1157. ( j) R. S. 1881, 2525; Potter v. The (f) R.S. 1881, 577; Piercer. Mills, State, 23 Ind. 607; Bescher v. The 21 Ind. 27. State, 63 Ind. 302, 321 ; Stevenson r. (g) Potter r. The State, 23 Ind. 607. The State, 71 Ind. 52. (h) R. S. 1881, 2460. 662 JUDGMENT. CHAP. administrator, or guardian, the judgment against the sureties, as well as the principal, may be without relief. 1014. On bonds, written undertakings, and recognizances. " Hereafter, all judgments recovered on bonds, written undertak- ings, or recognizances executed in any legal proceeding, civil or crim- inal, shall be collectible without relief from valuation or appraisement laws of the State of Indiana." 15 This section is limited to obligations executed " in any legal proceed- ing, civil or criminal," and does not authorize a judgement without the stay of execution, as in the next preceding section. JUDGMENT FOR COSTS. 1015. Recovered in civil actions. " In all civil actions, the party recovering judgment shall recover costs, except in those cases in which a different provision is made by law." 1 The right to recover costs is given exclusively by statute." 1 And by this section the right to recover costs is limited to civil actions." What is a civil action has been considered in another place. 1016. Exception ; recovery under fifty dollars. " In actions for money demands on contract commenced in the circuit or superior courts, if the plaintiff recover less than fifty dollars, exclusive of costs, he shall pay costs, unless the judgment has been reduced below fifty dollars by a set-off or counterclaim pleaded and proved by the defend- ant, in which case the party recovering judgment shall recover costs. When the judgment is reduced below fifty dollars by proof of pay- ments, the defendant shall recover costs ; provided, that in all actions for money demands on contract, where one or more defendants neces- sary to a full determination of such cause are non-residents of the county in which such suit is brought, but are residents of the State of Indiana, and have been duly served with process in such action, the plaintiff shall recover costs, although he may recover judgment for less than fifty dollars. "P The proviso of this section was added by way of amendment in 1881, q and allows a judgment for costs where the plaintiff may join all (k) K. S. 1881, 578. (n) Knox v. Fesler, 17 Ind. 254. (1) K. S. 1881, I 590; Stow v. Gra- (o) Ante, vol. I., % 176, 177, 178. ham, 55 Ind. 10. (p) R. S. 1881, 591 ; Stow v. Gra. (m) Dearinger v. Ridgeway, 34 Ind. ham, 55 Ind. 10. 54. (q) R. S. 1876, p. 194, 397. XXII.] JUDGMENT. 663 of the parties in the circuit court, but can not before a justice of the peace, on account of their non-residence of the county. This provision of the statute is limited to actions for "money de- mtuids on contract." r And does not apply where the amount of recovery is reduced below fifty dollars by proof of set-off or counterclaim. 3 Under the statute of 1843, if the " sum due or demanded" should not exceed fifty dollars, the plaintiff must pay the costs.' It was held under that statute that the "sum due or demanded" must be determined by the plaintiff's evidence on the trial. If his evi- dence entitled him to a judgment for more than fifty dollars, he was entitled to recover costs, although the defendant's evidence might re- duce the recovery below that sum. u Under the present statute, the rule is quite different. The question of the right to a judgment for costs depends as much upon the evi- dence of the defendant as upon that of the plaintiff, if the evidence goes to establish payment. Where there is proof of payments by the defendant, the rights of the parties, as to costs, is determined by the actual recovery." It is not sufficient that the defendant may have pleaded a set-off or counterclaim. One or the other must be proved, so far, at least, as to reduce the plaintiff's recovery to fifty dollars or less, to effect the ques- tion of costs. w The statute applies to actions on bonds payable to the state in the name of the state, on the relation of the party interested. x If the amount of the plaintiff's recovery is reduced to fifty dollars or less by proof of payments made either before or after suit brought, the defendant recovers costs. y Proof of part performance of a contract sued on has been held to be within the provision relating to set-off and counterclaim, although not pleaded as such. 2 The decision is placed upon the ground that the plaintiff makes out (r) Brock v. Parker, 5 Ind. 538; (t) K. S. 1843, pp. 864, 865. Hutchins v. Smith, 8 Blkf. 122; Ed- (u) Dayton v. Hall, 8 Blkf. 556; monds v. Paskins, 8 Blkf. 196; Ward Proctor v. Bailey, 5 Blkf. 495; Hig- v. Herschberger, 38 Ind. 76 ; The Co- man v. Brown, 3 Ind. 430. lumbus, etc., R. R. Co. v. Watson, 26 (v) Wathen v. Pare, 17 Ind. 320. Ind. 60; Sutherland w. Venard, 32 Ind. (w) Ward v. Hershberger, 38 Ind. 483. 76. (s) Stevenson v. Ennis, 39 Ind. 216; (x) The State v. Parker, 33 Ind. 285. The Columbus, etc., R. R. Co. v. Wat- (y) Wathen v. Fare, 17 Ind. 320. son, 26 Ind. 50; Poag v. LaDue, 7 Ind. (z) Martin v. Custer, 18 Ind. 99. 675. CG4 JUDGMENT. [CHAP. a. prima facie right to recover above fifty dollars, and part performance is a counterclaim. Under the present statute, a counterclaim is an affirmative cause of action, and must be pleaded as such to be available. a But being pleaded as a defense, if in fact it is a counterclaim, does not make the pleading an answer. It may be treated as a counter- claim. 1 * If, however, the matter is not so pleaded as to constitute a cause of action in the defendant, it should not be treated as a. counterclaim in determining the question of costs. "Where both a set-off and payment are pleaded, and a general verdict is returned for fifty dollars or less, and it can not be ascertained there- from whether the claim was reduced below the amount fixed by the statute by the one or the other, judgment should be rendered in favor of the plaintiff for coSts. c 1017. In actions for damages solely. "In all actions for damages solely, not arising out of contract, if the plaintiff do not re- cover five dollars damages, he shall recover no more costs than dam- ages, except in actions for injuries to character and false imprisonment, and where the title to real estate comes in question. " d Under this section, the defendant is not entitled to judgment for costs. The statute simply limits the amount of the plaintiff's recovery where the damages assessed are less than five dollars. In order to pre- sent the question, therefore, the defendant should move in the court be!6w that the plaintiff recover no more costs than the damages found in his favor, and not move for a judgment in the defendant's favor for all costs except that sum. The effect of the statute is to leave both parties without a judgment for costs, except the limited amount allowed the plaintiff, and, with that exception, each party must pay his own costs. 6 The statute excepts actions where the title to real estate comes in question. Whether the title is in question can not always be deter- mined by the pleadings. If, upon the trial, the evidence shows that the title to real estate is not in controversy, the statute applies, although by the pleadings evidence controverting it would be competent.* (a) R. S. 1881, g 357; ante, vol. I., (e) Sinclair ?;. Roush, 14 Ind. 450; $ 553, 665. Willman v. Clouser, 16 Ind. 318. (b) Ante, vol. L, 678. (f) Dodd v. Sheeks, 5 Blkf. 592; (c) Hatwood v. Campbell, 51 Ind. Sinclair v. Roush, 14 Ind 450; Crom- 83. well v. Lowe, 14 Ind. 234. (d) R. S. 1881, 592. xxn.] JUDGMENT. 665 But if the evidence shows that the title was in question, the plaint- iff is entitled to judgment for costs. 8 And where the evidence is not in the record, the supreme court will presume in favor of the action of the court below. h The jury can not determine the question of costs. It is controlled by the statute-.' The section does not apply to a cause appealed from a justice of the peace.J Where the plaintiff seeks and obtains other relief than a judgment for damages, for example, an injunction, the section does not apply. It only applies to actions for damages solely. k The statute provides that, where lands are attached and the attach- ment is sustained, the plaintiff may recover costs, although he obtains judgment for less than fifty dollars. 1 An action for damages against an administrator de son tort is within the statute. 1018. Relators liable for costs. " Relators and persons or cor- porations for whose use an action is brought, whether such use is shown by the pleadings of the plaintiff or defendant, shall be liable for costs jointly with the actual parties to the action. But when the state is plaintiff, the relator only shall be liable, and judgment for costs shall be rendered accordingly."" 1 The section of the statute embraces two classes of actions : 1. Where the action is brought by a private individual for the use of another. 2. Where the action is brought in the name of the state for the use of a private individual or corporation. In the first class, the party in whose name the action is brought is liable for costs, but the person for whom he sues is also liable jointly with him. In the second class, the liability for costs is upon the relator alone." Where an action is brought on the relation of an officer whose duty it is to sue for the benefit of a county or township, the judgment must be against such county or township if defeated, &nd not against the of- ficer. (g) Holmes v. Wright, 36 Ind. 383. (k) Douglas v. Blankenship, 50 Ind. (h) Stewart v. Henry, 5 Blkf. 445; 160. Burnett v. Coffin, 4 Ind. 218; Holmes (1) R. S. 1881, 697. v. Wright, 36 Ind. 383. (m) R. S. 1881, 593. (i) Conner v. Winton, 8 Ind. 315. (n) The State v. Beem, 3 Blkf. 222. (j) Castle v. House, 41 Ind. 333; (o) Sebrell v. Fall Creek Township, Brown v. Snavelly,24 Ind. 270; Brown 27 Ind. 86. v. Duke, 46 Ind. 343. 666 JUDGMENT. [CHAP. As a rule there can be no judgment against the state. p But the governor may direct suit to be brought, on his relation, for the breach of the condition of any bond by which the state is injured, unless otherwise provided by law, and all costs taxed against such rela- torwill be paid by the state. q 1019. When apportioned. Where there are several plaiufiffs the costs may be apportioned, and where there are several issues, some of which are determined in favor of the plaintiffs, and others in favor of the defendants, the parties are entitled each to recover the costs upon the issues determined in his favor/ Where an order has been made by the court below apportioning the costs on the several issues, it will be presumed to be right on appeal, in the absence of a showing to the contrary. 8 1020. Where suits can be joined ; costs in one only. "When the plaintiff shall, at the same court, bring several actions against the defendant upon demands which might have been joined in one action, he shall recover costs only in one action unless it shall ap- pear to the court that the actions affect different rights or interests, or other sufficient reasons exist why the several demands ought not to have been joined in one action." 1 The statute does not apply where one demand only is due. The plaintiff may sue at once upon either demand falling due, although the other that might be joined will mature in time to sue at the same term." The two causes of action must exist at the time the first action is brought or the plaintiff is entitled to recover his costs in the second suit. v 1021. On appeal from justice of the peace. It is provided, in the justice's act: " Costs shall follow judgment in the circuit court on appeals, with the following exceptions : "First. If either party, against whom judgment has been rendered, appeal and reduce the judgment against him five dollars or more he (p) R. S. 1881, 593, 1726. (s) Jamieson v. The Board of (q) R. S. 1881, I 5585. Comm'rs of Cass County, 56 Ind. 466. (r) R. S. 1881, 594; Sidener v. (t) R. S. 1881, 595. Spaugh, 26 Ind. 317; Acker v. McCul- (u) Wade v. Musselman, 15 Ind. 77. lough, 50 Ind. 447; Jamieson v. The (v) The Ft. Wayne, etc., R. R. Co. Board of Comm'rs of Cass County, 56 v. Clark, 59 Ind. 191. Ind. 466; Dill v. O'Ferrell, 69 Ind. 600. XXII.] JUDGMENT. QG7 shall recover his costs in the circuit court when the appellant appeared before the justice. " Second. If either party, in whose favor judgment has been ren- dered, appeal and do not recover at least five dollars more than he re- covered before the justice, the appellee shall recover his costs in the circuit court." w Under the first clause of this section the appellant must have ap- peared to the action before the justice." But where the defendant appears before the justice and files an answer, this is such an appearance as will entitle him to a judgment for costs on appeal, although he fails to appear at the trial and refuses to defend. 7 This section contains the only exceptions in actions brought before justices of the peace to the general rule that costs follow the judgment on appeal. 2 In determining whether the judgment recovered before the justice has been reduced five dollars or not the question of interest should not be considered. 3 The rights of the parties must be governed by the amounts for which the two judgments are recovered. Therefore if the defendant ap- peals, and fails to reduce the judgment of the justice five dollars, he must pay the costs, although his failure to reduce the amount results solely from the interest having accumulated between the rendition of the two judgments. This, it is held, is the proper construction of the statute, but it is clearly wrong in principle. It must follow, from this rule, that where the plaintiff appeals from a judgment in his favor, and increases the amount five dollars, he is entitled to recover his costs, although the in- crease is interest accumulated since the first judgment was rendered, and the judgment of the circuit court shows that he recovered the full amount due him in the first instance. If the amounts of the two judgments must control under the first clause, it must necessarily under the second, and in both cases it is so palpably wrong as to chal- lenge the correctness of the construction given the statute. (w) R. S. 1881, 1505; Carter v. Duke, 46 Ind. 343 ; ante, 1017; Topf Berkshire, 8 Blkf. 193. v. King, 26 Ind. 391 ; Scary v. Brush, (x) Beall v. Rowland, 32 Ind. 368. 42 Ind. 172. (y) Holcomb v. McDonald, 12 Ind. (a) Turner v. Simpson, 12 Ind. 413; 566; Hall v. Reynolds, 14 Ind. 472. Widup v. Gibson, 53 Ind. 484. (z) Brown v. Snavely, 24 Ind. 270; Castle v. House, 41 Ind. 333 ; Brown v. 668 JUDGMENT. [CHAP. The question of the right to recover costs does not depend upon the evidence, but upon the amount of the judgments. b In determining whether the party appealing has gained or lost five dollars, the costs recovered before the justice may be considered. Thus, the defendant offered to confess judgment in the justice's court, and the plaintiff recovered less than the amount offered, thus making him liable for costs; but, upon appeal by him, he recovered more than the sum offered, but not sufficient to increase his judgment five dollars, it was held that, by his recovery on appeal, it appeared that the judg- ment against him in the justice's court, for costs, was wrong, and that the costs, together with the increase in his judgment, being over five dollars, he was entitled to recover full costs. The fact that the difference in the amount of the two judgments is the result of an amendment in the circuit court does not change the effect of the statute. d The party may avoid the effect of an appeal by entering a rtmittitur, unless the judgment is reduced five dollars below the justice's judgment, after deducting the amount remitted. 6 It was held, in an early case, that the remittitur must be entered be- fore the rendition of the judgment, and judgment be entered for the amount of the verdict, less the amount remitted. f But this case is clearly overruled by the later case cited, although not referred to therein. Where a judgment is rendered against a party for less than five dol- lars, and he recovers judgment on appeal, he recovers his costs. 6 The statute applies to an action of replevin. 11 It was held, prior to the revision of 1881, that, on appeal from a city court, in a case where that court was given greater jurisdiction than justices of the peace, the section under consideration was not ap- plicable, and costs followed the judgment in the circuit court.' But, under the present statute, city courts have no greater jurisdic- tion than justices of the peace. J And the practice in case of appeals is governed by the law regulat- ing the practice in appeals from justices of the peace. k (b) Hall v. Reynolds, 14 Ind. 472. (h) Brown v. Duke, 46 Ind. 343; (c) Wallace v. Hays, 2 ) Ind. 252. Polk v. Nickens, 63 Ind. 439. (d) Anthony v. Fullhart, 68 Ind. (i) Dotson v. Bailey, 76 Ind. 434. 659. (j) R. S. 1881, l\ 1314,3206; ante, (e) Clark v. Milburn, 62 Ind. 203. vol. I., 33. (f ) Crockett v. Calvert, 8 Ind. 127. (k) E. S. 1881, \ 3206, 3216. (g) Brinnaman v. Grover, 16 Ind. 347; Sutherland v. Flynn, 16 Ind. 36. XXII.] JUDGMENT. C69 If the party recovering judgme'nt appeals, and fails to increase his judgment five dollars, he must pay the costs in the circuit court. 1 The section under consideration was held, in one case, to be uncon- stitutional." 1 But the case has been expressly overruled. 11 1022. On offer to allow or confess judgment. Where the defendant offers to confess judgment fora certain sum and the plain- tiff refuses to accept, and on the trial he recovers no more, the defend- ant is entitled to judgment against him for all costs accruing after the offer to confess is made. Where the offer is to allow judgment, before* suit, and an action is subsequently brought in which the plaintiff does not recover more than the amount offered to be confessed he must pay all the costs. p 1023. Claims against estates. In claims against estates the general rule prevails that costs follow the judgment. But in order to entitle himself to costs the claimant must file his claim within one year from the time of giving notice of the appointment of an execu- tor or administrator.* 1 The time does not commence to run from the appointment, but from the time of giving notice thereof. r The claim must be accompanied by an affidavit of the claimant, his agent, or attorney, that the claim, after deducting all credits to which the estate is entitled, is justly due and wholly unpaid, or the claimant will be bound for all costs in the prosecution of the claim." 1024. Disclaimer. In actions to recover possession of real estate, or to determine conflicting claims thereto, the defendant may file a dis- claimer of any interest in the matter in controversy.' The filing of a disclaimer terminates the action as against the de- fendant filing it, and entitles him to a judgment against the plaintiff for costs." 1025. Reversal by supreme court. A reversal by the supreme (1) Robinson v. Skipworth, 23 Ind. (q) R. S. 1881, ? 2310. 111. ' (r) Floyd v. Miller, 61 Ind. 224, 2-8. (m) Kuhns v. Krammis, 20 Ind. (s) R. S. 1881, 2310. 490. (t) R. S. 1881, 1072. (n) Robinson v. Skipworth, 23 Ind. (u) Ante, vol. I., $ 555, 556; Ers- 311. kine v. McCutchan, 9 Ind. 255; Me-- (o) R. S. 1881, 514; ante, 999. Carnan v. Cochran, 57 Ind. 166. (p) R. S. 1881, 514; ante, 1000. 670 JUDGMENT. [CHAP. court carries costs against the losing party back to the first error of the court below on which the judgment of reversal is based. 7 Where the error occurs in the trial of the cause, and has the effect to render the proceedings erroneous from the first, the reversal carries costs back to the issues, including costs of subpoenas and their service, docketing, making up the issues and entries to the beginning of the trial, as well as the costs of the trial. w Any error that is cause for* a new trial must, under this rule, carry all costs back to the commencement of the trial, whether the proceed- ings prior thereto are affected or not, as the error causing a mistrial necessarily affects the whole trial, and places the parties where they were at the closing of the issues. As a new trial is rendered neces- sary by the reversal, and the witnesses must be subpoenaed again, the losing party in the supreme court must pay the costs of issuing the subpoenas in the first trial/ When the cause is affirmed in whole the appellee recovers costs. Where the cause is reversed in part, costs may be awarded as the court may deem right. 8 1026. Adjudged before final judgment. When an order for the payment of costs is made before the cause is terminated, judg- ment should be rendered therefor at the time.' This section may be applied where either party is ordered to pay the costs of a continuance, or the costs arising upon any interlocutory order of the court. 1027. Belongs to the party recovering the judgment. The statute authorizing the recovery of costs proceeds upon the theory that each party pays his costs as the cause proceeds. But whether the costs are paid by the party or not, the judgment therefor belongs to him ab- solutely, and may be collected or sued upon, and draws interest the same as the judgment for the debt. u 1028. Security for costs. Where the plaintiff is a non-resident (v) R. S. 1881, 664; Doyle v. Kiser, (s) R. S. 1881, ? 664. 8 Ind. 396. (t) R. S". 1881, 596. (w) Doyle v. Kiser, 8 Ind. 396; Con- (u) Armsworth v. Scotten, 29 Ind, nerw. Winton, 10 Ind. 25; Eigenmann 495; Miller v. The State, 61 Ind. 503; v. Kerstein, 72 Ind. 81; Winton v. Hays v. Boyer, 59 Ind. 341; Goodwin Conner, 24 Ind. 107. v. Smith, 68 Ind. 301 ; Palmer v. (r) Conner v. Winton, 10 Ind. 25- Glover, 73 Ind. 529. Eigenman v. Kerstein, 72 Ind. 81. XXH.J JUDGMENT. 671 of the state, he must file in the office of the clerk an undertaking for costs. The undertaking must be made payable to the defendant, and be ap- proved by the clerk. 7 The failure to give the necessary bond is not a cause for dismissal if the plaintiff will file the same in open court when ordered. w The bond can not be required where there are several plaintiffs and any of them reside in the state. 1 The bond may be required at any stage of the cause, where it is shown that the plaintiff was, at the commencement of the action, or has become since, a non-resident. y The fact of non-residence must be proved by affidavit, and no coun- ter affidavits are allowed. 2 The statute applies to non-resident administrators.* In a suit on the bond, only the costs of the defendant in a former action can be recovered. 1 " 1029. Form of judgment for costs. A judgment for costs is usually rendered before the costs are taxed or the amount ascertained. It is held, therefore, that it is not necessary that such judgment shall show the amount of costs recovered. This must appear from the fee book, which is a public record that must be kept by the clerk. There- fore, the clerk's entries of costs therein are binding upon the parties, and, in connection with the judgment, fix and determine the amount of costs recovered. If there is any error in the amount as shown by the fee books, it must be corrected by a proceeding to tax the costs, and can not be reached collaterally. d HOW DEFECT IN FORM REACHED. 1030. By motion in the court below. It is a well-settled rule of practice that no advantage can be taken of a defect or error in the form of a judgment on appeal to the supreme court, unless the atten- (v) R. S. 1881, 580. (a) Griggs v. Voorhies, 7 Blkf. 561. (w) R. S. 1881, 589; Dowell v. (b) Goodwin v. Smith, 68 Ind. 301. Richardson, 10 Ind. 573; Hughes v. (c) Palmer v. Glover, 73 Ind. 529; Osborn, 42 Ind. 450. P., C. & St. L. R. W. Co. v. The Town (x) Thalman v. Barbour, 5 Ind. 178. of Elwood, 79 Ind. 306; Dufour v. (y) Malaby v. Hinkston, 4 Blkf. 127 ; Kious, 91 Ind. 409. Culley v. Laybrook, 8 Ind. 285. (d) P., C. & St. L. R. W. Co. v. The (z) Smith v. Chandler, 13 Ind. 513. Town of Elwood, 79 Ind. 306. 072 JUDGMENT. [CHAP. tion of the lower court has been called thereto by the proper objection or motion, and an exception has been reserved. 6 There are numerous decisions on this same point, in addition to those cited in the foot-note. They eem to be entirely disregarded in a great majority of the cases appealed, and a very great number of the cases where objections have been made to the form of the judgment were lost by reason of the failure to present the question to the court below by a proper motion. When it is said that the form of a judgment can not be corrected in the supreme court, it is not mere clerical or formal defects that are included, but matters of substance. The rule is that, if any part of the judgment is valid under the issues, the judgment* will not be reversed in the supreme court, although relief is given or refused thereby that would have been erroneous if the proper motion had been made in the court below. f If the question is raised before the judgment is entered, it should be done by an objection to the rendition of the judgment proposed. If after it is entered, it should be by a motion to modify the judg- ment. And in either case, an exception must be taken at the time and reserved by a bill of exceptions. 8 The rule applies to judgments by default. 11 The objection to the judgment should be particularly pointed out.' The form of a judgment can not be challenged by a motion in ar- rest. Such a motion must precede, and its object is to prevent, the rendition of any judgment.-* A motion for a new trial is not necessary. The proper exception being taken, and a bill of exceptions filed, the question is presented by an assignment of error in the supreme court. b In the superior court, the proper motion or objection must be made at special term. 1 (e) Gray v. Gwinn, 30 Ind. 409 ; 74 Ind. 575 ; Floore v. Steiglemayer, Johnson v. Unversaw, 30 Ind. 435; 76 Ind. 479. Kissinger v. Hanselman, 33 Ind. 80; (f) Harden v. Walpole, 38 Ind. 146; O'Brien v. Peterman, 34 Ind. 556; Wilkerson v. Rust, 57 Ind. 172. Pierce v. "Wilson, 48 Ind. 298; McCor- (g) Martin v. Martin, 74 Ind. 207; mick v. Spencer, 53 Ind. 550 ; Leonard Douglass v. The State, 72 Ind. 385. v. Blair, 59 Ind. 510; Brownlee v. (h) Barnes v. Wright, 39 Ind. 293; Hare, 64 Ind. 311 ; Forgey v. The First Barnes v. Conner, 39 Ind. 294. National Bank of Cambridge City, 66 (i) Sanxay v. Hunger, 42 Ind. 44. Ind. 123; Ludlow v. "Walker, 67 Ind. (j) Douglass v. The State, 72 Ind. 353 ; Bayless v. Glenn, 72 Ind. 5 ; Teal 385 ; Smith v. Dodds, 35 Ind. 452. v. Spangler, 72 Ind. 380; Martin v. (k) Hancock v. Heaton, 53 Ind. 111. Martin, 74 Ind. 207 ; Smith v. Kyler, (1) Huffman v. The Indiana Na- tional Bank, 51 Ind. 394. XXII.] JUDGMENT. 673 1031. Correcting judgments. -'-Where there is any mistake or error in entering judgment, the same may be corrected by the proper motion for that purpose. If made at the same term, no notice is nec- essary. If after the term, notice must be given." 1 What amendments of a judgment will be allowed, and the practice with reference thereto, have been considered." 1032. How judgment entered and signed. "The judgment must be entered on the order book, and specify clearly the relief granted or other determination of the action." The proceedings of the court must be read and signed inopen court. 1 It is not necessary that the judgment in each case shall be signed separately, but this may properly be done. p In considering the question of the effect of a failure to enter and sign the judgment, the distinction between the act of the clerk, which is ministerial, and the judicial act of the court in rendering judgment, should be kept in mind. q The judgment is not rendered void by the failure of the clerk to en- ter it. But the statute requires that, before the judgment can be en- forced by execution, it must be entered and signed. This need not be done on the day the judgment is announced. It may be done at a later day in the same term, or at a subsequent term/ But whether the entry of the judgment is made on the same or a subsequent day, it must be read in open court and signed by the judge before execution can properly issue thereon. Where the judgment is entered at a subsequent term, it should be upon a proper application and notice to the opposite party, and it must appear that a judgment was actually rendered. 8 EFFECT OF JUDGMENT. 1033. Merges the cause of action. By the rendition of judg- ment, the original cause of action is merged therein and extinguished (m) Kindig v. March, 15 Ind. 248; (o) R. S. 1881, 579. Hebel v. Scott, 36 Ind. 226; Sherman (p) R. S. 1881, 1330; Galbraith v. v. Nixon, 37 Ind. 153; Colman v. Wat- Sidener, 28 Ind. 142; Jones' v. Carna- son, 54 Ind. 65; Boles v. Brown, 57 ban, 63 Ind. 229; Kent v. Fullenlove, Ind. 282; Latta v. Griffith, 57 Ind. 38 Ind. 522. 329; Hughes v. Hinds, 60 Ind. 93; (q) Freeman on Judgments, \ 38; Reily v. Burton, 71 Ind. 118; Smith v. Kent v. Fullenlove, 38 Ind. 522. The State, 71 Ind. 250; Hannah v. (r) Kent v. Fullenlove, 38 Ind. 522. Dorrell. 73 Ind. 465. (s) Passwater c. Edwards, 44 Ind. (n) Ante, vol. I., 714 et seq.; Con- 343. way v. Day, 79 Ind. 31 8. (1) Mitchell v. St. John, 98 Ind. 598; 674 JUDGMENT. [CHAP. thereby. The judgment itself becomes a debt of record that takes the place of the original cause of action.' It may be sued upon like any other debt, and in like manner it is merged in the second judgment. It is extinguished for all purposes. The lien created by the first judg- ment is destroyed by the recovery of the second." The revivor of a judgment does not merge the original. T In Stockwell v. Walker, it was held in general terms that, by a judgment in an action upon a judgment, the one sued upon was not merged, but the two remained in force. But the question was not be- fore the court, and the contrary doctrine is clearly decided in Gould v. Hay den. In an action on a promissory note, and to foreclose a mortgage given as security therefor, the cause of action on the note is not merged by a foreclosure of the mortgage. There must be a personal judgment on the note. w A personal judgment on notes secured by a mortgage does not waive the mortgage lien. But if the premises are taken on execution under the judgment, it is otherwise. 1 The judgment of foreclosure does not extinguish the lien of the mort- gage, but preserves and continues it in force. 7 The foreclosure of a school fund mortgage extinguishes the mort- gage, aud takes away the right of the county auditor to sell the real estate thereon. 2 A judgment against one joint obligor merges the cause of action as to all, except where one of the obligors being made a party has not been served with process, and proper steps have been taken under the statute to preserve the plaintiff's rights as to him. 8 There are exceptions to this rule: 1. Where one of two joint debtors has died, a judgment against the survivor does not bar proceedings (t) Ault v. Zehering, 38 Ind. 429; (x) Applegate v. Mason, 13 Ind. 75. Cissna v. Haines, 18 Ind. 496; Rawley (y) Teal v. Henchman, 69 Ind. 379; v. Hooker, 21 Ind. 144; Gould v. Hay- The Evansville Gas Light Co. v. The den, 63 Ind. 443; Crosby v. Jeroloman, State, 73 Ind. 219; Manns v. The 37 Ind. 264; Buchanan v. The Logans- Brookville Nat. Bank, 73 Ind. 243. port, etc., R. W. Co., -71 Ind. 265; (z) Ferris v. Cravens, 65 Ind. 262. Ward v. Haggard, 75 Ind. 381. (a) Ante, vol. I., g 443, 444, 445, (u) Gould v. Hayden, 63 Ind. 443; 447; Archer v. Heiman, 21 Ind. 29; Freeman on Judg., \\ 215, 216, 388. Barnett v. Juday, 38 Ind. 86; Root v. (v) Stockwell v. Walker, 3 Ind. 215; Dill, 38 Ind. 169; Holman v. Langtree, Armstrong v. McLaughlin, 49 Ind. 40 Ind. 349; Lingenfelser v. Simon, 49 370; Gould v. Hayden, 63 Ind. 443. Ind. 82; Odell v. Carpenter, 71 Ind (w) Lipperd v. Edwards, 39 Ind. 4o3; Cox v. Maddux, 72 Ind. 206; Rob- 165; Marshall v. Stewart, 65 Ind. 243. inson v. Snyder, 74 Ind. 110. xxn.] JUDGMENT. 75 against the estate of the other. b 2. Where such makers are not resi- dents of the same state, or are not all within the reach of the process of any court in which the suit could be brought. It was formerly held that the allowance of a claim against the estate of one joint debtor was sufficient to release the other. d But the pres- ent statute for the settlement of decedents' estates provides that an ex- ecutor or administrator can not be sued jointly with another, and that all contracts executed jointly by the decedent with another, and every joint judgment thereon, shall be deemed joint and several, and the amount due thereon shall be allowed against the estate of the decedent as if the contract were joint and several. 6 The provisions of this statute change the former rule, and a judg- ment against either the estate of the deceased debtor or the survivor must be treated as one upon a joint and several liability, and can not merge the cause of action as to the other. An action upon a judgment is included in the statute. 1034. The lien. "All final judgments in the supreme and circuit courts for the recovery of money or costs shall be a lien upon real es- tate and chattels real, liable to execution in the county where judgment is rendered, for the space of ten years after the rendition thereof and no longer, exclusive of the time during which the party may be re- strained from proceeding thereon by any appeal or injunction, or by the death of the defendant, or by agreement of the parties entered of record." f "The following real estate shall be liable to all judgments and at- tachments, and to be sold on execution against the debtor owning the same, or for whose use the same is holden, viz.: "First. All lands of the judgment debtor, whether in possession, re- mainder, or reversion. "Second. Lands fraudulently conveyed, with intent to delay or de- fraud creditors. "Third. All rights of redeeming mortgaged lands; also, all lands held by virtue of any land office certificate. "Fvurth. Lands, or any estate or interest therein, holden by any one in trust for or to the use of another. "Fifth. All chattels real of the judgment debtor."* (b) Devol v. Halstead, 16 Ind. 287; (e) R. S. 1881, $ 2311, 2312; ante Cox v. Maddux, 72 Ind. 206. vol. 1., 124. (c) Cox v. Maddux, 72 Ind. 206. (f) R. S. 1881, \ 608; Kinney . (d) Greathouse v. Kline, MS. case Dodge, 101 Ind. 673. No. 8820, April 19, 1882. ^g) R. S, 1881, 752. 676 JUDGMENT. [CHAP. A judgment of the Circuit Court of the United States is a lien upon the real estate of the debtor throughout the state. h So of a judgment of the supreme court of the' state.' \Ajudgmeut lien does not attach to real estate held by a title bond. J An equitable title is not subject to a judgment lien. k Nor is real estate conveyed to one person, to be by him conveyed to another immediately, affected by judgments standing against him. He takes simply as a trustee, and no lien attaches. 1 The lien of a judgment is subject to the lien of an unrecorded mort- gage executed prior to its rendition. 1 " Where real estate has been sold but not conveyed, the lien of a judg- ment against the vendor reaches the land, but the vendee may be re- lieved in equity to the extent of any purchase-money paid by him be- fore the lien attached." The lien of a judgment upon the real estate of a corporation is not lost by the subsequent appointment of a receiver therefor. When a personal judgment is rendered in a foreclosure proceeding, and an order is made that, after the sale of the mortgaged property, the residue of the amount be levied of other property of the defend- ant, the personal judgment is a general lien on all of the real estate of the defendant in the county, and a specific lien upon the land mort- gaged. P The equity of redemption of a defendant in real estate is subject to the lien of a judgment^ The judgment is not a lien on real estate in another county/ A judgment of the circuit court is not a lien upon personal property. To bind personal property an execution must issue. 8 Priority. As a rule, the lien of a judgment attaches at the date of its rendition, and is subject to all existing liens or rights of third (h) Simpson v. Niles, 1 Ind. 196; Gaar v. Lockridge, 9 Ind. 92; Jackson Jenners v. Doe, 9 Ind. 461. v. Snell, 34 Ind. 241 ; Simpson v. Niles, (i) Simpson v. Niles, 1 Ind. 196. 1 Ind. 196. (j) Modisett? Johnson, 2 Blkf. 431; (o) The Southern Bank of Ken- Doe v. Cutshall, 1 Ind. 246. tucky v. The Ohio Insurance Co., 22 (k) Terrell v. Prestel, 68 Ind. 86; Ind. 181. Russel v. Houston, 5 Ind. 180. (p) Fletcher v. Holmes, 25 Ind. 458. (1) Cox v. Arnsmann, 76 Ind. 210. (q) Julian v. Beal, 26 Ind. 220. (m) Sparks v. The State Bank, 7 (r) Baker v. Chandler, 51 Ind. 85. Blkf. 469. (s) Richardson v. Seybold, 76 Ind. (n) Vance v. Workman, 8 Blkf. 306 ; 58. Holman . Creagmiles, 14 Ind. 177; JUDGMENT. 677 parties, whether legal or equitable, and the question whether the judg- ment plaintiff had notice of such liens is immaterial.' It is otherwise as to the purchaser of a judgment or of the real es- tate on execution issued thereon. In such case, where the existing lieu is equitable merely, notice must be shown, or the purchaser will take the land free from the lien." Judgments are liens upon real estate in the order of time of their rendition. 7 A mortgage given for purchase-money has preference over a prior judgment against the purchaser. w It is held that a judgment lien is divested by the condemnation of the real estate for street purposes. 1 A guardian's sale of real estate does not divest the lien of a judgment against the ward. y Nor does a proceeding for partition and sale thereunder affect the lien of a judgment against one of the owners; but the judgment plaintiff may be made a party to the action, and the lieu transferred to the part owner's share of the purchase-money. 2 An assignment for the benefit of creditors does not affect existing judgment liens. a Where real estate has been sold on execution for only a part of the amount of the judgment upon which it was sold, and it has been re- deemed by the owner or some other person entitled to redeem, it be- comes again liable to the existing liens as if no sale had been made, and may be sold for the balance of the judgment upon which it was sold in the first instance. b The widow of a judgment defendant, who married him after the (t) Manns v. The Brookville PSJjC~ (w) R. S. 1881, 1089; Houston v. Bank, 73 Ind. 243 ; The Motibno Houston, 67 Ind. 276. Hydraulic Go. v. Loughry, 7$nd. 562; (x) Gimbel v. Stolte, 59 Ind. 446. Armstrong v. Fearnaw, 67 Ind. 429; (y) Shaffner v. Briggs, 36 Ind. Wain wright v. Flanders, 64 Ind. 306; 55. Wharton v. Wilson, 60 Ind. 591; Peet (/.) Wood v. Winings, 58 Ind. 322; v. Beers, 4 Ind. 46; Albridge v. Dunn, Fouty v. Morrison, 73 Ind. 333; ante, 7 Blkf. 249; 2 Pomeroy's Eq. Jus., vol. I., 159. 721; Foltz v. Wert, 103 Ind. 404; (a) New v. Reissner, 56 Ind. 118; Heberd r. Wines, 105 Ind. 237. Forkner v. Shafer, 56 Ind. 120. (u) Tuttle v. Churchman, 74 Ind. (b) Goddard v. Renner, 57 Ind. 532; 311 ; Wain wright v. Flanders, 64 Ind. Cauthorn v. The Indianapolis, etc., R 306 ; 2 Pomeroy's Eq. Jur., g 724: R. Co., 58 Ind. 14. (v) Whitney r. llightclaim, 6 Blkf. 322; Steele v. Hanna, 8 Blkf. 326; Swope v. Ardery, 5 Ind. 213; State v. Cisnev, 5)5 Ind. '265. 678 JUDGMENT. [CHAP. lien attached, can claim no interest in his real estate as against the judgment so long as the lien continues.' 1 Where a judgment defendant acquires real estate subsequently, all judgment liens then existing attach at once, and their priority depends upon the date of issuing execution thereon. d Judgments on bonds payable to the State of Indiana bind the real estate of the debtor from the commencement of the action. 6 This section applies to the sureties on the bond. f A recognizance binds the real estate of the principal from the time it is taken, and that of the surety from the judgment of forfeiture^ How long lien continues. The lien of a judgment upon real estate, as a general rule, continues for ten years from the rendition thereof, and no longer. But there are four exceptions, the statute excluding from the computation of time : 1. The time during which the party is restrained by an appeal from proceeding. 2. The time during which the plaintiff is restrained by an injunction. 3. The time the plaintiff may be prevented from proceeding by the death of the defendant. 4. The time the plaintiff may be prevented from enforcing the judgment by an agreement of the parties entered of record. h When collection is restrained by agreement of the parties, it must be for a certain and definite time, or the lien will not be extended be- yond the time fixed by the statute.' The lien of a decree of foreclosure continues for twenty years from its date.* 1035. Judgment docket ; notice of lien. The statute requires that a judgment docket shall be kept by the clerk, in which he shall enter, within thirty days after each term of the court, in alphabetical order, a statement of each judgment rendered at such term, contain- ing: First. The names at length of all the parties. (c) Armstrong v. McLaughlin, 49 Francis, 30 Ind. 92; Ball v. Barnett, Ind. 370; Bobbins v. Bobbins, 8 Blkf. 39 Ind. 53. 174. (h) R. S. 1881, 608; Applegate v. (d) O'Harra v. Stone, 48 Ind. 417; Edwards, 45 Ind. 329; Castle v. Fuller, Michaels v. Boyd, 1 Ind. 259. 17 Ind. 402; Kinney v. Dodge, 101 (e) U.S. 1881, 609; Ball v. Bar- Ind. 573. nett, 39 Ind. 53. (i) Ristine v. Early, 21 Ind. 103. (f ) Shane v. Francis, 30 Ind. 92. (a) The Evansville Gas Li;ht Co. r. (g) R. S. 1881, 1220; Shane r. The State, 73 Ind. 219. XX I f.] JUDGMENT. 679 Second. The amount of the judgment and costs and date of its ren- dition. Third. If the judgment be against several persons, the statement shall be repeated under the name of each defendant, in alphabetical order. Recognizances of bail for stay of execution shall be entered in such docket immediately after the taking or return thereof, specifying the judgment and its amount, the date of the recognizance, and names of the bailJ The record is required to be kept open during the usual hours for transacting business. k And the clerk is made liable to the party injured for a failure to en- ter any judgment or recognizance as required by the statute. 1 The judgment docket is not necessary to constitute the lien, but it is necessary to constitute sufficient notice thereof to third parties. A subsequent purchaser or incumbrancer for a valuable consideration is only bound to look to the judgment docket for judgment liens, and if any judgment has not been entered therein, in the absence of actual notice, he takes the land discharged from the lien, and the only remedy of the judgment plaintiff, if there is no other property, is against the clerk under section 585. m The cases cited from this state relate to transcripts of judgments filed in another county ; but there can be no difference in principle, as be- tween the judgment plaintiff and third parties, between the original judgment and the transcript. The transcripts are required to be " recorded." This must mean in the order book. It must also be " entered in the judgment docket." This is precisely what must be done in the county where the judgment is rendered. If the simple recording is sufficient notice in one county, it should be in the other. To hold that the judgment as recorded in the order book is sufficient notice to third parties, would be to render the entry in the judgment docket a mere form, answering no valid purpose whatever, and the section of the statute making the clerk li- able in damages to the party injured would be entirely nugatory, as no one could be injured, in contemplation of law, by a failure to enter the judgment. The judgment plaintiff has the right to see that his judgment is properly entered. The purchaser has no such power. Therefore, the judgment plaintiff should be regarded as the party in (j) K. S. 1881, 583. man on Judg., 343; Berry v. Reed, (k) R. S. 1881, 584. 73 Ind. 235; The State v. Record, 80 (1) R. S. 1881, 585. Ind. 348; post, 1036. (m) Bell v. Davis, 75 Ind. 314; Free- 680 JUDGMENT. [CHAP. jured by the negligence of the clerk, and should be left to his action for damages under the statute." During the thirty days allowed the clerk in which to enter the judg- ment in the judgment docket, the purchaser must look to the order book. 1036. Transcript to bind real estate. The lien of a judgment rendered in one county may be extended to the real estate of the de- fendant in another county by filing a transcript thereof in the clerk's office of such county, and having the same recorded in the order book of the circuit court and entered in the judgment docket. p The transcript filed, as provided by this section, becomes a lien from the time the same is recorded in the order book and entered in the judgment docket. The statute provides that it shall become a lien " from the time of filing the copy aforesaid." q But it is held by the supreme court that it is not enough that it be Sled. It must be recorded and entered in the judgment docket/ Some of the earlier cases held that the transcript was a lien from the time of filing. 8 But the rule is clearly established the other way by the later de- cisions. The recording and entering of the transcript is not only necessary as notice to third parties, but the statute must be complied with in order to constitute a lien. 1 When the statute has been complied with the lien of the judgment is the same as if the transcript were an original judgment rendered in the county where it is filed, recorded, and entered. u (l) The statute applies to judgments of the superior court. v 1037. Transcripts of justices of the peace. The statute re- quires that justices of the peace shall make out and transmit transcripts of judgments rendered by them, and provides that they shall be forth- with recorded in the order book, and docketed in the judgment docket, by the clerk of the circuit court. It is also provided that the transcript shall be a lien upon the real property of the defendant within the (n) Berry v. Reed, 73 Ind. 235. (s) Julian v Deal. !> ItWL 1220; Ball (o) Berry v. Reed, 73 Ind. 235. *& 39 I nd ; ; .,-,,. }' R a' , fiin (t) Bell v. Davis, /o Ind. 314. (p) R. S. UI8I, ilO. (u) R s 1881 g 611 (q) R. S. 1881, 611. (1) But the execution must issue (r) Berry . Reed, 73 Ind. 235; The from the court in whirli judgment was State v. Record, 80 Ind. 348; Bell ,. de o | 2 fj",'^ *' C X ' 9? lnd ', Davis, 75 Ind. 314; ante, g 1035. ^ j n ;/ Dav ^ 7.5 Ind 314 . XXH.] JUDGMENT. 681 county, to the same extent as judgments of the court, from the time of filing the transcript." It will be noticed that the transcript is declared to be a lien from the time of filing the same. And the supreme court has held that it is a lien from the time of its filing. 1 It was held, in the same case, that transcripts from the circuit court were liens from the time of filing. As we have seen, the later cases hold that the transcript of the circuit court is not a lien until recorded and entered. y The reason for holding that the filing of a transcript from the cir- cuit court does not constitute a lien applies with equal force to tran- scripts from justices of the peace. In each case it is required, not only that the transcript shall be filed, but that it shall be recorded in the order book, and docketed in the judgment docket. Notwithstanding the section provides that the transcript shall be a lien from the time it is filed, if the construction given sections 610 and 611 is right the same construction must be given to sections 612 and 613, and the transcript must be recorded and entered before the lien can attach. 2 1038. When conclusive ; collateral attack. The general rule is that judgments not void are conclusive against parties to the action, their heirs, and privies. It is also a well-established rule that a judg- ment, no matter how erroneous it may be, can not be attacked or controverted in a collateral proceeding, by the parties thereto, nor by strangers, except for fraud. 8 The rule applies to judgments rendered in another state. b Where the judgment is void on the ground that the court had not (w) R. S. 1881, 612, 613. George, 49 Ind. 309; Davenport v. (x) Ball v. Burnett, 39 Ind. 53, 56. Barnett, 51 Ind. 329; Britton t>. The (/) Berry lulled, 73 Ind. 235 ; Bell State > 54 Ind " 535 ' Pressler T rn <*, r. Davis, 75 Ind. 314; ante,? 1036. See 57 Ind. 56; Goar v. Maranda, 67 Ind. also American IMS Co. v. Gibson, 104 339; Williams v. Nesbitt, 65 Ind. 171; Ind. 336; Dufour v Kiou*. 91 Ind. 409. Osborn . storms, 65 Ind. 321; Avers (a) Cornwell v. Hungate, 1 Ind. Io6; TT , , T , ,,., m , n , Ziengenhager v . Doe , f ] nd . 296; Doe * Harshman, 6b Ind. 291 ; The Board v. Smith, 1 Ind. 451; Billing v. Mur- of Comm'rs, etc., v. Hall, 70 Ind. 469; ray, 6 Ind. 324; Applegate v. Mason, The State v. Benson, 70 Ind. 481 ; Faris 13 Ind. 75; Cassell c. Scott, 17 Ind. v. Reynolds, 70 Ind. 359; Jones v. 514; Evans v. Ashby, 22 Ind. 15; Levi, 72 Ind. 586; Walker v. Heller, Waltz v. Borroway, 25 Ind. 380; De- 73 Ind. 46; Palmer v. Glover, 73 Ind. quindrc v. Williams, 31 Ind. 444; Nut- 529; Fee v. Moore, 74 Ind. 319; Earl zen holster v. The State, 37 Ind. 457; v. Matheny, 60 Ind. 202; Davidson v. Gavin v. Graydon, 41 Ind. 559; Bates Kohler, 76 Ind. 398; Hume v. Con- v. Spooner, 45 Ind. 48D; Nicholson v. duitt, 76 Ind. 598. Stephens, 47 Ind. 185; Landers v. (b) Anderson v. Fry, 6 Ind. 76. 682 JUDGMENT. [CHAP. jurisdiction of the subject-matter or of the person of the defendant, it is not a judgment, and may be attacked collaterally. Where the judgment is in rem, jurisdiction of the person need not appear. d When the jurisdiction of an inferior court depends upon a fact which such court is required to ascertain and settle by its decision, such deci- sion is conclusive, except in a direct proceeding to reverse or set aside the judgment. 6 Its judgment can not be questioned collaterally on account of errors or irregularities which do not affect the jurisdiction.* When the record discloses nothing on the point, jurisdiction of the person or the subject-matter will be presumed, in aid of the judgment of a court of general jurisdiction/ Where there is an appearance by attorney, the authority of the at- torney to appear in the action can not be controverted in a collateral proceeding, except upon the ground of fraud. 8 It was held in some of the early cases that the judgment debtor might show, to avoid the effect of the judgment, that the attorney had no authority to appear for him. h But the later decided cases are the other way. A personal judgment against a married woman can not be attacked collaterally on the ground of coverture.' The remedy for a judgment obtained by fraud was, under the old practice, by a bill in chancery.- 1 A stranger to the judgment, who is injuriously affected thereby, may show, in a collateral proceeding, that it was obtained by fraud. k But the fraud that will authorize a third party, for example, another (c) Ante, vol. I., 905; Horner v. Hawkins v. Hawkins, 28 IncL 66; Doe, 1 Ind. 130; Allen v. Chadsey, 1 Hays v. Ford, 55 Ind. 52; Ayers v. Ind. 39S>, Packard v. Mendenhall, 42 Harshman, 66 Ind. 291; Dwiggins v. Ind. 598; ante, vol. I., \ 207. Cook, 71 Ind. 579; lies v. Watson, 76 (d) Wiley v. Pavey, 61 Ind. 457; Ind. 359; Crane v. Kimmer, 77 Ind. Davidson v. Kohler, 76 Ind. 398. 215. (e) The State v. Needham, 32 Ind. (g) Ante, vol. I., 227; Wiley v. 825; Hornaday v. The State, 43 Ind. Pratt, 23 Ind. 628; The Floyd County 30; Faris v. Reynolds, 70 Ind. 359; Ag. Association v. Tomkin, 23 Ind. The Board of Comm'rs of Lawrence 348; Bush v. Bush, 46 Ind. 70. Co. v. Hall, 70 Ind. 469; Hume v. Con- (h) Sherrard v. Nevins, 2 Ind, 241 ; duitt, 76 Ind. 598; ante, vol. I., 5; Boylan v. Whitney, 3 Ind. 140. Featherston v. Small, 77 Ind. 143; The (i) Wagner v. Ewing, 44 Ind. 441. State v. Wenzel, 77 Ind. 428. ( j) Button v. Denton, 2 Ind. 644. (a) Featherston v. Small, 77 Ind. (k) Freeman on Judg., 335,336; 143. DeArmond v. Adams, 25 Ind. 455; Lee (f) Horner v. Doe, 1 Ind. 130; v. Back, 30 Ind. 148; The State v. Waltz v. Borroway, 25 Ind. 380; Holmes, 69 Ind. 577. XXII.] JUDGMENT. 683 creditor of the judgment defendant, to attack the judgment, must af- fect both parties to the judgment and amount to collusion. It is not enough to show that the judgment plaintiff has overreached the cred- itor and obtained an unjust advantage over other creditors. 1 A party to the action can not set aside the judgment on the ground of fraud in the original cause of action. This should be set up at the trial. The fraud that will entitle a party to the action to relief must be the fraud of the opposite party in obtaining the judgment, and not in obtaining the cause of action or defense.'" A party to the judgment can not impeach it collaterally, for fraud. He must either appeal or bring a direct action to set it aside." In either case, the fraud must be in obtaining the judgment, and not the cause of action upon which it is founded. The record of a justice of the peace is conclusive evidence of the facts stated therein, and can not be contradicted by a pleading. P It has been held that a discharge in bankruptcy can not be attacked collaterally for irregularity or fraud practiced in the proceedings in which it was obtained.* 1 The rule that forbids a collateral attack applies to interlocutory or- ders. 11 A personal judgment for a debt not yet due is erroneous, but not void. Not being void, it follows that it is not subject to collateral at- tack. 8 1039. Effect of appeal from judgment. The binding effect of a judgment is not affected by an appeal therefrom. If not void, it is conclusive upon the parties until actually reversed. Execution may be stayed during the pendency of an appeal, the necessary bond being given, but the judgment is none the less effective as having settled the controversy between the parties, and may be used as evidence and pleaded as res adjudicata, the same as if no appeal had been taken. 1 (1) Wells' Res Adjudicata, 150, 151 ; (p) Larr v. The State, 45 Ind. 364. Lewis v. Rogers, 16 Pa. St. 18; McAl- (q) Wiley v. Pavey, 61 Ind. 457. pine v. Sweetser, 76 Ind. 78. (r) Parsons v. Milford, 67 Ind. 489: (m) The State v. Holmes, 69 Ind. Candy v. Hanmore, 76 Ind. 125. 577, 589. (s) Gall v. Fryberger, 75 Ind. 98. (n) Freeman on Judg., 334. (t) Burton v. Burton, 28 Ind. 342; (o) Hunter v. The Burnsville Turn- Nill v. Comparet, 16 Ind. 107; Heffren pike Co., 56 Ind. 213; Markle v. The v. Jayne, 39 Ind. 463. Board, etc., of Clay County, 55 Ind. 185. 684 JUDGMENT. [CHAP. REPLEVIN BAIL. 1040. The statute. "Sec. 690. When judgment has been ren- dered against any person for the recovery of money or sale of prop- erty, he may, by procuring one or more freehold sureties to enter into a recognizance, acknowledging themselves bail for the defendant for the payment of the judgment, together with the interest and costs ac- crued and to accrue, have a stay of execution from the time of signing the judgment, as follows : "First. If the sum for which the judgment was rendered, inclusive of costs, do not exceed six dollars, for thirty days. "Second. If such sum and costs exceed six, and do not exceed twelve dollars, sixty days. "Third. If such sum and costs exceed twelve, and do not exceed twenty dollars, ninety days. "Fourth. If such sum and costs exceed twenty, and do not exceed forty dollars, one hundred and twenty days. "Fifth. If such sum and costs exceed forty, and do not exceed one hundred dollars, one hundred and fifty days. " Sixth. If such sum and costs exceed one hundred dollars, one hun- dred and eighty days." u "Sec. 691. The bail for stay of execution may be taken and ap- proved by the clerk, and the recognizance entered of record at anytime before the term of the stay of execution expires. The undertaking in the recognizance shall be for the payment of the judgment, interest, and costs that may accrue at or before the expiration of the term of the stay of execution. The recognizance shall be written immediately following the entry of the judgment and signed by the bail." v 1041. Is a judgment confessed. "Every recognizance of bail taken as above provided shall have the effect of a judgment confessed from the date thereof against the person and property of the bail." w In order to be binding for any purpose, the replevin bail must be en- tered before the expiration of the length of stay allowed by the statute; therefore the entry thereof after the time can not have the effect of a valid judgment, but is wholly void.* So where the judgment is not repleviable. y (u) R. S. 1881, 690. (x) Osborn v. May. 5 Ind. 217; Tay. (v) R. S. 1881, 691. lor v. Sanford, 8 Blkf. 169; EHzroth . (w) R. S. 1881, 697; Hutchins v. Voris, 74 Ind. 459. Hanna, 8 Ind. 533; The Vincennes (y) Egbert r. The State, 4 Ind. 399; Nat. Bank p. Cockrum, 64 Ind. 229. Taylor r. Resell, 75 Ind. 386. XXII.] .JUDGMENT. 685 1042. "What judgments repleviable. All judgments upon which execution may issue are repleviable, unless otherwise provided by statute. 1 No execution can issue on a judgment against an estate, in an action against an executor or administrator, and there can be no stay of exe- cution by entering replevin bail. 8 A judgment of foreclosure may be replevied. b And where there is no personal judgment, and the mortgaged prop- erty has been sold, the clerk may issue execution for the balance of the judgment against the replevin bail. c It is provided by statute that judgments recovered against any sheriff, constable, or other public officer, administrator, executor, or any person or corporation, or the sureties of any or either of them, for money collected or received in a fiduciary capacity, or for a breach of any official duty, or for money or other article of value held in trust for another, shall be collectible without stay of execution.* 1 This statute has been held to apply to suits on guardians' bonds. 6 When the judgment is not repleviable it should be so ordered therein, and entered on the execution. f 1043. How entered. The right to enter replevin bail is controlled entirely by statute. 8 The entry must, therefore, be in conformity to the statute. But we have a curative statute, which provides : " No official bond entered into by any officer, nor any bond, recognizance, or written undertaking taken by any officer in discharge of the duties of his office, shall be void for want of form, or substance, or recital, or condition, nor the principal or surety be discharged ; but the principal and surety shall be bound by such bond, recognizance, or written undertaking, to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in the bond or recognizance. In all actions on a defective bond, recognizance, or written undertaking, the plaintiff or relator may suggest the defect in his complaint, and recover to the same extent as if such bond, recognizance, or written undertak- ing were perfect in all respects." h (z) Develin v. Wood, 2 Ind. 102; (d) R. S. 1881, $ 577, 699. McLane v. Elmer, 4 Ind. 239. (e) Bescher v. The State, 63 Ind. (a) Egberts. The State, 4 Ind. 399; 302, 321. Taylor v. Russell, 75 Ind. 386. (f j R. S. 1881, ? 699. (b) Nilesfl. Stillwagon, 22 Ind. 143; (g) The Vincennes Nat. Bank i>. Ensley v. McCorkle, 74 Ind. 240. Cockrum, 64 Ind. 229. (c) Ensley t>. McCorkle, 74 Ind. 240. (h) R. S. 1881, 1221. 68G JUDGMENT. [CHAP. The statute is very broad in its terras and applies to recognizances of replevin bail.' The effect of this statute is thus stated in Hawes v. Pritchard : ' ' The effect of these provisions of section 790 of the code (1221 of new code), upon informal or defective bonds, recognizances, or written undertak- ings, taken by an officer in discharge of the duties of his office has of late been the subject of full consideration by this court in a number of cases ; and it has been uniformly held, as we now hold, that the effect of these statutory provisions is to legalize and validate the bond, re- cognizance, or written undertaking in question, and make of it just such an instrument as was contemplated and called for by the terms of the statute under which it appeared to have been executed"* It was held, in some of the earlier cases, that where the statute re- quired that the recognizance of replevin bail should be attested by the justice, of the peace, the attestation was necessary to its validity. k The effect of section 1221 upon defective recognizances was not con- sidered in these cases. In later cases it is held that the section is ap- plicable to and cures the defect where it consists of a failure to attest the entry of recognizance by the justice, and the earlier cases are ex- pressly overruled. 1 To constitute a valid recognizance of replevin bail before a justice of the peace it must be entered on the docket. It is not sufficient, under this statute, that the recognizance be writ- ten and properly executed, on a separate piece of paper, though it is attached to the docket. It must be " entered on the docket" or it is void. 11 To enter the recognizance on the back of the execution issued on the judgment of a justice of the peace is not sufficient. The provision with reference to the entry in the circuit court is that it " shall be written immediately following the entry of the judgment." P (i) Hawes v. Pritchard, 71 Ind. 166; (k) Hougland v. The State, 43 Ind. The Vincennes Nat. Bank v.Cockrum, 537; Fentriss v. The State, 44 Ind. 271. 64 Ind. 229; Miller v. McAlister, 59 (1) Miller v. McAlister, 59 Ind. 491 ; Ind. 491. Etzroth v. Voris, 74 Ind. 459; The (j) Hawes v. Pritchard, 71 Ind. 166, State v. Trout. 75 Ind. 563. . 170; Railsback v. Greve, 58 Ind. 72; (m) R. S. 1881, \ 1520. Fuller v. Wright, 59 Ind. 333; Miller (n) McCormick v. Cassell, 16 Ind. v. McAlister, 69 Ind. 491; Yeakle v. 408; Lockwood v. Dills, 74 Ind. 56. Winters, 60 Ind. 654; Turner v. The (o) McCormick v. Cassell, 16 Ind. State, 66 Ind. 210; Graham v. The 408. State, 66 Ind. 386 ; The State v. Wyant, (p) K. S. 1881, 691. 67 Ind. 25. XXII.] JUDGMENT. 687 It is held that, notwithstanding this provision, the recognizance need uot follow immediately after the judgment.* 1 Where the bail is entered after the execution issues it may be taken by the sheriff and indorsed on the execution/ The entry need not appear to have been approved by the clerk." Can not stay part of a judgment. " The undertaking in the recogni- zance shall be for the payment of the judgment, interest, and costs that may accrue at or before the expiration of the term of the stay of execution."' It is held, under this clause of the statute, that the recognizance must be for the whole judgment and can not be for a part." While these cases agree in holding that there can be no recognizance for less than the whole of the judgment, interest, and costs, they do not agree as to the effect of an attempt to enter replevin bail for a part. In one it is held that the effect of section 1221 is to make such a recognizance binding " to the full extent contemplated by the law re- quiring the same." T The effect of the decision was to extend the liability of the replevin bail beyond his express contract, and beyond his intention and make a new and different contract not contemplated by him. This was cer- tainly carrying the effect of a statute, evidently intended to cure defects in form, to an extreme that could not be sustained. In the later case of Sterne v. McKinney it is held that recognizance bail entered for half of a judgment, where the judgment was against two defendants, was absolutely void. There was an attempt to secure the whole judgment " by halves," a part of the recognizers having become replevin bail for one of the defendants, and a part for the other, in the following form: "We acknowledge ourselves replevin bail for the payment of Jacob W. Hargrove's one-half of the judgment upon which the within execution has issued, together with the interest and costs accrued and to accrue thereon, at or before the expiration of the time allowed by law for the stay of execution 6n such judgment." The supreme court say, after quoting the statute authorizing the entry of replevin bail: " In the absence of the above provisions of the stat- ute a judgment could not be stayed by putting in bail. The judgment debtor who seeks the benefit of the statute must comply, substantially, with its provisions. He can not, by procuring bail for a part of a (q; Williams v. Beisel, 3 Ind. 118. Cockrum, 64 Ind 229; Sterner. Mc- (r) R. S. 1881, 694. Kinney, 79 Ind. 578; The Vincennes (s) Ensleyv. McCorkle, 74 Ind. 240. Nat. Bank v. Cockrum, 80 Ind. 355. (t) R. S. 1881, 691. (v) The Yincennes Nat. Bank v. (11) The Vincennes Nat. Bank \ Cockrum, 64 Ind. 229. 688 JUDGMENT. [CHAP. judgment against him, obtain a stay of execution. The undertaking of the recognizance must, by the express terms of the statute, be for the payment of the whole judgment. He can not obtain a stay upon one- half of the judgment by putting in bail for its payment, nor can be stay the whole judgment ' by halves.' If the recognizances iu this case are valid each must be considered ' good without reference to the other. They are in no way connected ; each is distinct from and inde- pendent of the other, and the validity of neither depends upon the existence or validity of the other. . . . It is insisted that section 790 of the code (section 1221 new code) applies to recognizances of replevin bail, and this has been too often held to be now questioned. It is insisted that this section so changes these recognizances that they secure the whole and not a part of the judgment. That though the recognizers expressly stipulated to pay a part only of the judgment, yet, by force of this section, they must be held to have undertaken to pay the whole judgment. 'And this is held to be the law in the case of The Vincennes National Bank v. Cockrum. This effect shoud not be given to the statute unless its language plainly and clearly required it. ... If this section applies to these recognizances, then, by its express terms, the recognizers, being sureties, can not be levied to a greater amount than that specified in the recognizance, to wit, one- half of the judgment. But as there is no law authorizing the stay of execution upon a recognizance to secure the payment of one-half of a judgment it follows that, as statutory recognizances, they are invalid." w This ruling has been followed by later cases not yet reported. The statute authorizes the replevin bail to have 'execution on the judgment before the stay expires, by filing an affidavit that he verily believes he will be liable for the judgment, interest and costs unless execution issues immediately. 1 Execution, thus issued, may be stayed for the balance of the time yet to run, as in other cases. 7 1044. Where part of judgment defendants are sureties. Where the judgment is rendered against t\vo or more persons, any of whom are sureties, the sureties may object, at the time the judgment is rendered, to replevin bail being entered, and it shall be so ordered by the court, unless the bail for the stay of execution will undertake, specially, to pay the judgment in case the amount thereof can not be levied of the principal defendant/ (w) Stern v. McKinney. 79 lad, 578, (y) R. S. 1881, 702. *583. fz) R. S. 1881, 700; Hogshead v. (x) R. S. 1881, I 701. Williairs, 55 Ind. 146. XXII.] JUDGMENT. 689 An objection by the sureties does not prevent the principal from staying the execution of the judgment; but when objection is made the recognizance must be in a different form. The replevin bail must bind himself to pay the judgment if not made out of the property of the principal, thus making himself liable before the sureties in the judgment can be compelled to pay. When the recognizance is given in this form, execution must be levied of the property of the principal first, then of the property of the replevin bail, and lastly upon that of the surety. ARREST OF JUDGMENT. 1045. For \vhat causes judgment may be arrested. "A motion in arrest of judgment reaches any defect in the pleadings not cured by the verdict, or the statute of amendments, or waived by fail- ure to demur." 3 What defects are waived by a failure to demur, and those cured by verdict, or by the statutes of amendments, has been fully considered. 11 That the complaint does not state facts sufficient to constitute a cause of action is not waived, and is cause for a motion in arrest. 6 ' So of the objection that the court has not jurisdiction of the subject- matter of the action. d It is only defects in the plaintiff's pleadings that can be cause for a motion in arrest. 6 But when there is a counterclaim, and a finding against the plaintiff thereon, judgment may be arrested on his motion/ As to the issue on the counterclaim the defendant becomes a plaintiff. When the motion is intended to apply to the counterclaim, it should be so stated in the motion. 6 And if the judgment is to be rendered on two separate counter- claims, the motion must be confined to the one that is bad. If it goes to the judgment generally, and one of the counterclaims is good, the motion will be overruled. 11 (a) Buskirk's Prac. 264; Adamson dens v. Younglove, 46 Ind. 212 ; New- v. Rose, 30 Ind. 380; Waiigb r.Waugh, man v. Pen-ill, 73 Ind. 153. 47 Ind. 580; Rawles v. The State, 56 (d) Reams v. The State, 23 Ind. Ill; Ind. 433. Loeb v. Mathis, 37 Ind. 306. (b) Ante, vol. I., $ 519, 520, 521, (e) Iglehart's Trac. & PI., pp. '2->\ 32 to 536, and 727, and authorities 259. cited; Felger v. Ktzell, 75 Ind. 417; (f) Brownlee v. Hare, 64 Ind. 311. Bowling v. Crapo, 6-3 Ind. 209. (g) Carriger v. Sicks, 73 Ind. 7ti. (c) McMillen v. Terrell, 23 Ind. 163; (h) Jones v. Pothast, 72 Ind. 158. Livesey v. Livesey, 30 Ind. 398 ; Hid- 44 690 JUDGMENT. [CHAP. Where there is a trial upon objections or exceptions to an adminis- trator's or executor's report, such administrator or executor is the plaintiff in the action, and there can be no motion in arrest by him. 1 Where there is an affirmative judgment in the defendant's favor, on an answer of set-off, the judgment may be arrested if the whole an- swer is bad, but not if there is one good paragraph authorizing such affirmative relief. j Defects in an affidavit for replevin can not be reached by a motion in arrest of judgment. 15 A defect must appear upon the face of the record to be cause for a motion in arrest. 1 The want of an allegation in the complaint that would be cause for arresting the judgment, may be supplied by the answer. A defect in the form of a judgment is not cause for a motion in ar- rest." Under the code of 1852, the fact that the action was brought in the wrong county was cause for a motion in arrest. But it is expressly provided in the present statute that the objection is waived if not taken by demurrer or answer. p 1046. Goes to the whole complaint. A motion in arrest does not reach a defect in a single paragraph of a complaint, where there is one or more good paragraphs. The whole complaint must be bad or the motion can not prevail. q 1047. The motion. The motion need not be in writing, or point out the ground upon which it is based/ But to be available on appeal, the record must show that the mo- tion was made, and an exception taken. 8 The court may arrest the judgment on the ground of want of juris- diction without a motion. The objection should prevail on such ground, if made at any stage of the cause.' (i) Brownlec v. Hare, 64 Ind. 311. (q) Waugh v. Waugh, 47 Ind. 580; (j) Harris v. Rivers, 53 Ind. 216. Clarkson v. McCarty, 5 Blkf. 574; (k) Davis r. Warfield, 38 Ind. 461. Newell v. Downs, 8 Blkf. 523; Kelsey (1) Rawles v. the State, 56 Ind. 433. v. Henry, 48 Ind. 37; Spahr v. Nick- (m) Sherrod v. Shirley, 57 Ind. 13; laus, 51 Ind. 221; Harris v. Rivers, 53 Wiles v. Lambert, 66 Ind. 494. Ind. 216; The Toledo, etc., R. W. Col (n) Smith p. Dodds, 35 Ind. 452; r. Milligan, 52 Ind. 505. ante, 1030. (r) Fall v. Hazelrig, 45 Ind. 576. (o) Loeb v. Mathis, 37 Ind. 306. (s) Vandever v. Garshmiller. 63 Ind. (p) R. S. 1881, 343; ante, vol. I., \ 18"). 477. (t) Reams r. The State, 23 Ind. 11L XXII.] JUDGMENT. 691 The motion in arrest must be made before judgment is rendered." And after a motion for a new trial. v 1048. Effect of arresting judgment. If the motion in arrest is sustained, the present action is at an end. There can be no judg- ment for either party, but each must pay his own costs and the plaint- iff may bring his action again. w There can be no amended complaint filed. The action must be brought de now. 1 REVIEW OF JUDGMENT.(l) 1049. Causes for review. There are but two causes for review: First. Error of law appearing in the proceedings and judgment. Second. Material new matter discovered since the rendition of the judgment^ New matter, as here used, means new matter of fact material to the case, not new matter of law enacted since the trial. z Nor is it sufficient that new evidence has been discovered. The new matter must consist of a newly discovered fact or facts, and not mere evidence of a fact already known. a Newly-discovered evidence is cause fora new trial and not for review. 1 * There can be no review for error in matter of form nor for matter of abatement. An action to review will not lie in ex parte proceedings.* 1 It is said, in the syllabus to one case, that a judgment may be re- viewed on the ground that it was obtained by fraud, but the case does not so decide, 6 and clearly such is not the law. The new matter con- templated by the statute must mean some fact or facts going to make up the original cause of action or defense, and not some act of fraud by which the judgment was obtained. If the fraud goes to constitute the cause of action, it is a fact that may amount to new matter within (a) Hilligoss v. The Pittsburg, etc., son v. Johnson, 18 Ind. 329; Fleming R. R. Co., 40 Ind. 112; Brownlee v, v. Stout, 19 Ind. "328; Webster v. Hare, 64 Ind. 311. Maiden, 41 Ind. 124; Barnes v. Dewey, (v) Ante, vol. I., 933, and authori- 58 Ind. 418; Tate v. Fletcher, 77 Ind. ties cited. 102. (w) Raber v. Jones, 40 Ind. 436. (b) Hall t-. Palmer, 18 Ind. 5; R. S. (x) Crawford v. Crockett, 55 Ind. 220. 1881, 559 ; ante, vol. I., 866, 918, et (1) Forms of complaint for, Vol. 3, seq. p. 183. (c) Fleming v. Stout, 19 Ind. 328. (y) R. S. 1881, 616; Harvey v. (d) Davidson v. Lindsay, 16 Ind. Davis, 46 Ind. 598; Vol.3, pp. 183-186. 186; Williams v. Williams, 18 Ind. (z) Worley v. The Town of Elletts- 345. ville, 60 Ind. 7. (e) The State c. Hi.lmes, 69 Ind 577. (a) Hall v. Palmer, 18 Ind. 5; Nel- 692 JUDGMENT. [CHAP. the statute. But where the fraud is in obtaining the judgment, while it may be ground for setting it aside/ it is not ground for review. It is supposed, however, in an early case, that it is ground for review, s But the question was not before the court, and the case, on this point is disapproved in a later decision. 11 That a judgment has been taken without defaulting the defendant is not ground for review.' It is cause for review that judgment was rendered, by default, on the first day of the term.J Where the action is for error of law, it must be such an error as would be cause for reversal in the supreme court. k A personal judgment against a married woman, rendered against her on default, may be reviewed where the fact of her coverture appears on the face of the complaint. 1 That the judgment is made to draw too great a rate of interest is cause for review." 1 1050. The parties. The statute provides that " Any person who is a party to any judgment, or the heirs, devisees, or personal repre- sentatives of a deceased party may file, in the court where such judg- ment is rendered, a complaint for a review of the proceedings and judgment." " All the parties to the judgment must be parties to the action to re- view. Parties to the action, where there is no judgment for or against them, need not be joined in a proceeding to review. Persons not parties to the judgment, nor their heirs, devisees, per- sonal representatives, or persons otherwise in privity, can not maintain an action to re view. p 1051. The pleadings ; complaint for error of law. In an action to review for error of law appearing in the proceedings and judgment, the complaint must set out so much of the record as would (f ) Post, 1057. (1) Emmett v. Yandes, 60 Ind. 548; (g) Quick v. Goodwin, 19 Ind. 438. Hinsey v. Feeley, 62 Ind. 85. (h) Keals v. Dicks, 72 Ind. 374; (m) Davidson v. King, 49 Ind. 338. post, 1057. (n) K. S. 1881, 615; Webster v. (i) Doherty v. Chase, 64 Ind. 73. Maiden, 41 Ind. 124. fj) Mitchell v. McCorkle, 69 Ind. (o) Sloan v. Whiteman, 6 Ind. 434; 184. Douglay v. Davis, 45 Ind. 493. (k) Rice v. Turner, 72 Ind. 559; (p) Cassell r. Case, 14 Ind. 393; "Richardson v. Howk, 45 Ind. 451. Owen v. Cooper, 46 Ind. -VJ1. XXII. ] JUDGMENT. C93 be necessary to present the same question on appeal to the supreme court. q It has been held, in a number of cases, that the complaint must contain a full and complete record of the proceedings in the former action/ But these cases are modified by that of Stevens v. The City of Lo- gansport, supra. An action to review for error apparent is regarded as in the nature of an appeal, and, so far as they are applicable, should be governed by the same rules. To require a complete record to accompany the complaint, where no question is presented but the sufficiency of the complaint in the origi- nal action would be unreasonable, and it is believed that none of the decided cases, in laying down the broad rule that a complete record must be made part of the complaint, were intended to require more of the record to be set out than would be sufficient to present the same question on appeal. Where the question of law presented arises on any of the pleadings, a record of the pleadings and the final judgment thereon is all that need be set out, except in cases of default, when the summons and return of the sheriff thereon should be included. If the question grows out of the admission or exclusion of evidence, or other error of law occurring at the trial, a bill of exceptions must have been filed in time to become a part of the record, and there must have been a motion for a new trial, both of which must be filed as a part of the complaint, together with other proceeding? in the cause." But if the proceeding is made part of the record by an order of court, this takes the place of a bill of exceptions to that extent.' It may be said, generally, that only so much of the record need be set out as is material and relevant to the errors relied upon as a cause for review." (q) Stevens v. The City of Logans- v. The Town of Ellettsville, 60 Ind. 7 ; port, 76 Ind. 498; Leech v. Perry, 77 Cravens v. Chambers, 69 Ind. 84; Ind. 422; Funk v. Davis, 103 Ind. 281 ; Hardy v. Chipman, 54 Ind. 591 ; Bur- Vol. 3, p. 183. ton v. Harris, 76 Ind. 429. 0 ville, 33 Ind. Ill; Wright v. Norris, Ind. 294; Reed v. Spayde, 56 Ind. 394 40 Ind. 247. XXII.] JUDGMENT. 695 until after a motion to set aside the judgment or proceedings to review it in the court below. The same foundation must be laid to entitle a party to review for error of law that would be necessary to entitle him to appeal. If an exception is necessary on appeal, it has been held uniformly that it is necessary in an action to review. If a party must move to set aside a default, and reserve his exception before he can appeal, he must do the same before he can ask for a review of the judgment for error of law appearing in the proceedings and judgment. The rule that requires that he shall show a meritorious defense before he can have relief from a default, would be overthrown by allowing him to maintain an action to review without moving to set aside the default. The rules applicable in case of an appeal must control in a proceeding to review. Although the proceeding for a review must be brought in the same court in which the original judgment was recovered, the court sits as an appellate court ; and, where the defendant has been properly served with process, but two questions can be presented, without an excep- tion having been taken in the original action: 1. That the court has not jurisdiction of the subject-matter. 2. That the complaint does not state facts sufficient to constitute a cause of action. 1 * The rule applies in case of default, except as to these two grounds of review ; and 3. That the court had not jurisdiction of the person of the defendant, which may be presented without an exception. In all other cases the party must first ask relief from the judgment, in the original action, and, if refused, reserve his exception before he can maintain an action to review. Where the action to review is for new matter, the rule is different. There no exception is necessary and no appeal would lie. c Recitals in the record are conclusive on the party pleading it, and can not be contradicted, or varied, by the allegations of the com- plaint.' 1 Errors may be waived otherwise than by a failure to except. Thus it is held that when the judgment is rendered by agreement, errors in the prior proceedings, and defects in the pleadings, are waived. 6 The complaint need not allege that the action is brought within the time limited by the statute/ (b) Tachan v. Fiedeldey, 81 Ind. 54; Ind. 451; but see Davidson v. King, Searle v. Whipperman, 79 Ind. 424; 49 Ind. 338. Busk. Prac.,p.270; Berkshire v. Young, (d) Weathers r. Doerr, 53 Ind. 104; 45 Ind. 461. Tho State r. Holmes, 69 Ind. 577. (c) Montgomery v. Hamilton, 43 (e) Collins r. Rose, 59 Ind. 33. (f ) Doyd r. Fitch, 71 Ind. 306. 69G JUDGMENT. [CHAP. For material neio matter. We have seen that a review for material new matter can only be had on the ground that some fact, or facts, material to the cause of action or defense have been disco vered. u The complaint must show, by the proper allegations, that some ma- terial fact has been discovered since the rendition of the judgment. It is not sufficient to allege the discovery of new evidence. v The complaint must also state the facts showing that the plaintiff was ignorant of such new matter, and that it could not have been dis= covered by the use of reasonable diligence. It is not enough to allege due diligence in general terms. w It must also appear that the complaint was filed without delay after such discovery. 1 The complaint on the ground of new matter discovered must be ver- ified.? So much of the record as is material to the question presented by the complaint must be set out. z A cross-complaint may be filed in an action to review. 8 Tlie answer,- Whether an answer is proper or not depends upon the nature of the grounds for review. If the complaint is for error of law appearing on the face of the proceedings and judgment, the court must determine the question from the record, and the whole question is presented by a demurrer to the complaint. No question of fact can arise and no answer is proper. b But while no question of fact can arise as to the original proceeding, if the demurrer to the complaint for review is overruled, the defendant may plead, by way of answer, a release of errors, or any matter that would bar an appeal. (u) Ante, 1049. 59 Ind. 33; Alexander v. Daugherty, (v) Hall v. Palmer, 18 Ind. 5; Nel- 69 Ind. 388; Francis v. Davis, 69 Ind. son v. Johnson, 18 Ind. 329 ; Webster 452. r. Maiden, 41 Ind. 124; Barnes v. (y) K. S. 1881, 617; Francis u. Dewey, 58 Ind. 418; Francis v. Davis, Davis, 69 Ind. 452. 69 Ind. 452. (z) Whitehall v. Crawford, 67 Ind. (w) K. S. 1881, 617; Comer v. 84. Himes, 49 Ind. 482; Jenkins t>. Prewett, (a) Harlen v. Watson, 63 Ind. 143 ; 7 Blkf. 329; Simpkins v. Wilson, 11 Tate ?-. Fletcher, 77 Ind. 102. Ind. 541 ; Bryant v. Haskins, 53 Ind. (b) Richardson r. Howk. 45 Ind. 218; Barnesw. Dewey, 58 Iml.418; Alex- 451 ; MoDade r. McDade, 29 Ind. 340; anderv. Daugherty, 69 Ind. 388; Gregg Story's Eq. PI , 404, 407; Brewer v. o. Louden, 51 Ind. 585; Francis r. Bowman, 20 Am. Dec-. 158, and rote, Davis, 69 Ind. 452; Whitehall v. Craw- p. 164; McDougal v. McDougherty, 39 ford, 67 Ind. 84. Ala. 409. (x) R. S. 1881, 617; Barnes v. (c) Richardson v. Howk, 45 Ind. Dewey, 58 Ind. 418; Collins r. Rose, 451 ; Leech v. Perry, 77 Ind. 422. XXn.] JUDGMENT. 97 The demurrer admits that the record is properly and fully set out. Therefore, if the defendant believes it is not properly set out, he should move the court to compel the plaintiff to include in his complaint the omitted part of the record, showing the part omitted. This should be done before the demurrer is filed. If the complaint is for new matter, an issue of fact is tendered, and an answer should be filed as in other cases. d In the note to Brewer v. Bowman will be found a very full and in- teresting review of the decided cases and the practice in bills of review. It may be regarded as the general rule that, where the bill is for error of law, the court must determine the question presented from the rec- ord, without reference to the evidence in the original action, and with- out the aid of evidence at the trial of the action to review. Wjiere the bill or complaint is for new matter, the evidence on the former trial may be important. The facts alleged in the complaint for review must be supported by proof, and may be controverted by the defend- ant. The defendant may also allege and prove any facts going to avoid the cause for revie vv set out in the complaint. The bill to review for error of law is treated under the old practice as in the nature of a writ of error, the remedy being the same ; and under the code practice, a complaint for review is in the nature of an appeal, to be tried by the record alone. 1052. The trial. If the action to review is for error of law, there can be no trial, as there is no question of fact presented by the plead- ings, except where a release of errors or affirmative matter in bar of the appeal is set up in answer. If the complaint is for new matter, or matter in bar of the appeal is pleaded, the question of fact presented by the pleadings should be tried as in other cases. 6 1053. The bond. The commencement of an action to review does not stay the execution of the judgment. But the statute provides that the court may, on the application of the plaintiff, at any time after the complaint is filed, stay further proceedings, and that, when proceedings are stayed, the court shall direct bond and security to be given as in cases of appeal/ 1054. The judgment. Upon the hearing, the court may reverse (d) R. S. 1881, 619; Richardson v. 158, and note, p. 168; Buffington v. Har- Howk, 4o Ind. 451 ; citing, 2 Daniell vey, 95 U. S. 99, 103. Ch. Pr., 1643; 2 Smith's Ch. 1'r., 63; (e) Richardson v. Howk, 45 Ind. see also Brewer v. Bowman, 2 Am. Dec. 451; Busk. Prac., pp. 273, 274. (t ) R. S. 1881, 018. 698 JUDGMENT. [CHAP. or affirm the judgment in whole or in part, or modify the same as the justice of the case may require, and award costs according to the rules prescribed for the awarding of costs in the supreme court on appeal. 5 1055. When proceeding to review allowed. The proceeding to review, if for error of law, must be brought within one year, and if for new matter, within three years ; or, for both causes, within one year after the rendition of the judgment.* 1 The complaint need not aver that it is brought within the time lira, ited by the statute. Nor is it bad if it shows that it was not filed within the time. 1 There can be no proceeding to review a judgment for divorced It is only final judgments that can be reviewed. There can be no review of an interlocutory order that could not be appealed from. k There may be an action to review the settlement of a guardian, ex- ecutor, or administrator. 1 For error of law, a party may resort to an appeal or an action to re- view, but not to both. Therefore, if the cause has been appealed to the supreme court and the judgment affirmed, this is a bar to a proceeding to review for error of law appearing on the face of the proceeding and judgment. Whether an appeal will bar a proceeding to review for new matter has been seriously questioned, and the authorities are not uniform." 1 In most of the states, newly discovered evidence is cause for review. We have seen that this is not true in Indiana. Under our prac- tice, it would seem to be the better rule that an affirmance on appeal will not bar an action to reView for material new matter. This should be so, as the new matter relied upon could not have been involved in the judgment of the supreme court. As to that there has been no adjudication. It is a new cause of action or defense that Avas not involved in the former trial in the court below or on ap- peal, else it is not new matter within the s-tatule. It may have been discovered after the appeal and after the judgment of affirmance. There could be no good reason for holding that the judgment of affirm- ance is a bar in such case. The decided cases holding it to be a bar (g) R. S. 1881, ? 620, 664; Alsop v. (j) R. S. 1881, I 615; Willman v. Wiley, 17 Ind. 452; Francis v. Davis, Willman, 57 Ind. 500. 69 Ind. 452; Hardy v. Kirtland, 34 (k) Cravens v. Chambers, 69 Ind. 84. Ind. 365. (1) Karney v. Valo, 56 Ind. 542. (h) R.S. 1881, 616; ante, vol. 1, 251. (m) See Brewer v. Bowman, 20 Am. (i) Whitehall v. Crawford, 67 Ind. Dec. 159, and authorities cited in the 84. note. XXII.] JUDGMENT. 690 seem to place it upon the ground that the former judgment, when af- firmed, becomes the judgment of the appellate court, and that the court below has no power but to enforce its execution. Whether this is true or not, the new matter set up for review has not been adjudicated, and should not be allowed to bar the proceeding. But the judgment, when affirmed, can not be regarded as the judgment of the appellate court, PO far as to preclude the court rendering it from giving re- lief under this statute. It has been held in general terms that a party has two remedies, either to appeal or bring his action to re- view, and to adopt one of these remedies is a waiver of the other. But none of these cases for review were on the ground of material new matter. They can not, therefore, be regarded as deciding the point. It is held that, where there has been an action to review and the judgment affirmed, it is a bar to a second action to review as well as to an appeal. p But this, it seems to me, should not be the rule where the first proceeding is for error and the second is for material new matter. An action may be brought to review an order of court declaring a person to be of unsound mind. The action can not be brought, how- ever, by him or his guardian. It must be by some other person in his own name or by a committee. q 1056. Effect of review. The effect of the judgment in an action of review is the same as a judgment of the supreme court on appeal. 1 Whether the judgment is affirmed or reversed it is a final judgment, from which an appeal to the supreme court may be taken. 8 The judgment for costs should be the same as on appeal.' A judgment of reversal does not finally dispose of the original cause." VACATING JUDGMENTS. 1057. How and for what causes. In proceedings to review, or (n) The Indiana Insurance Co. v. (r) Maghee v. Collins, 27 Ind. 83; Koutledge, 7 Ind 25; Davis v. Bin- Brown v. Keyser, 53 Ind. 85; Busk, ford, 70 Ind. 44; Dunkle v. Elston, 71 Prac., p. 274. Ind. 585. (s)' Brown r. Keyser, 53 Ind. 85. (o) Story's Eq. PI., 418. (t) R. S. 1881, 620. (p) Coen v. Funk, 26 Ind. 289. (u) Leech r. Perry, 77 Ind. 422. (q) Meharry v. Meharry, 59 Ind. 257. 700 JUDGMENT. [CHAP. on appeal, the right to relief grows out of some error of the court or some newly-discovered fact. The effect of a review, as we have seen, is to vacate the judgment in whole or in part. The effect of a reversal in the supreme court is the same. There are various other ways by which a judgment may be vacated as the result of some proceeding of the court growing out of errors com- mitted or allowed, or because of some legal disability existing on the part of the judgment defendant. Thus, the granting of a new trial va- cates the judgment." So of a new trial granted as of right. v And by setting aside a default w or an order relieving a party from a judg- ment taken against him through his mistake or excusable neglect.* So the statute authorizes a proceeding to vacate judgments in cer- tain cases where the parties are laboring under disabilities ; as in case of infants, where judgment has been rendered against them, or their property has been obtained by fraud or mistake. y So where judg- ment has been taken on constructive notice. 2 A judgment is vacated, by a second judgment, in an action thereon.* These, except the last, are some of the cases in which a judgment is vacated as the result of some proceeding authorized by statute. Where the statutory remedy is resorted to the statute must be complied with. b Formerly the power to vacate judgments for fraud rested in courts of equity, and a bill in chancery was necessary to obtain relief. It was a question, after the enactment of the code, whether this equitable remedy still existed and could be enforced, or whether the means provided by statute excluded all other modes of obtaining relief. It was held, in some of the earlier cases, that in order <.o obtain re- lief from a judgment the statute must be followed, and that the right to set aside the judgment of a superior court, by bill in chancery, for fraud, or by complaint in the nature of such a bill, was entirely super- seded by the various provisions of the code for the vacation of judg- ments. But in a very late case it is held that the equitable right to vacsite ft judgment procured by fraud still exists, and may be enforced by the courts of this state independent of any statutory provision.* 1 (u) Ante, vol. I., g 946. (a) Ante, 1033. (v) Ante, vol. I., 968. (b) Nealis p. Dicks, 72 Ind. 374. (w) Ante, vol. I., 468. (c) 3IcQuigg v. McQuigg, 13 Ind. (x) Ante, vol. I., \\ 460, 402. 407, 468. 294; Woolley v. Woolley, 12 Ind. 663; (y) K. S. 1881, 2453. Quick v. Goodwin, 19 Ind. 438. (?A U.S. 1881, 600; ante, 994. (d) Nealis v. Dicks. 72 Ind. 374; Vol. 3, pp. 185, 186. XXII.] JUDGMENT. 701 The court say : " That our courts possess ample equity powers, is a proposition so plainly correct that its bare statement excludes debate. Nor does the statute concerning the review of judgments restrict the power of the courts, to set aside judgments, to the two grounds there specified. Courts must and do possess other powers than those ex- pressly conferred by statute. The code does not profess to strip the courts of the powers incident to courts of equity. The framers of the code did -not intend to take from our courts rights and authority long asserted and exercised. Courts of equity possess powers far more im- portant, and infinitely more essential, to the complete administration of justice, than any ever created or conferred* by legislative enactment. The powers of courts of equity were created and defined by men of wis- dom, whose object was to form a body of primary rights and equitable remedies that would enable the courts to enforce the principles of nat- ural justice. It will not do to hold that courts possess no power to annul judgments except upon the grounds and in the mode expressly specified and prescribed by statute. If courts were restricted to the exercise of mere statutory powers, they would make but a lame and halting progress in the administration of justice. "The statute concerning the review of judgments does not mean that judgments shall only be vacated upon the grounds therein desig- nated, or only in the mode therein prescribed, to the exclusion of all other causes and all other modes. Neither the letter nor the spirit of the act warrants the conclusion that the legislature intended to so nar- row the power of courts of general jurisdiction to relieve against judgments as to limit and confine them to the causes and modes ex- pressly prescribed by statute. Where the statute does prescribe the causes for which a judgment may be set aside, and does provide a mode of procedure, then, of course, the statute controls, and is to be fol- lowed and obeyed. " The provisions of the code do not, in terms, refer to the vacation of judgments upon the ground of fraud. In the article concerning the review of judgments, two causes for review are named : 1st. Errors of law; 2d. The discovery of material new matter. The fraudulent act of a party, by which he prevents au appearance, can not be justly said to be new matter within the meaning of the code. It would be an abuse of terms to affirm that a review of the judgment and proceed- ings was necessary in order to get rid of a judgment procured by su?li fraudulent means, for there is, in such a case, nothing to review. It is evident that the article of the code referred to is intended to apply to cases where a re-examination or reconsideration of the proceedings is necessary in order to give adequate and just relief. Review ordinarily 702 JUDGMENT. [CHAl 1 . means to reconsider, to re-examine, and it is obvious that this is the meaning attached to the word by our code. That this court regards the code as embracing only cases where it is necessary to re-examine former proceedings is conclusively shown by the fact that there is a long and unbroken line of cases holding that, where the complainant seeks a review, he must make the record of the proceedings in the cause sought to be reviewed a part of the complaint. Where, as here, the complainant seeks relief from a judgment upon the ground of fraud in obtaining it, there can not be the slightest shade of reason for requiring the record to be incorporated into the complaint for review. The question in such cases is, Was the prevailing party guilty of fraud in obtaining judgment? This is the only question, and it would be idle to assert that in such a case there must be a review of the rulings of the court. There is, of course, a very great distinction between obtaining a judg- ment by fraud and cases where fraud constitutes a defense. If the complainants were asking to be let in to -defend upon the ground of newly-discovered matter showing fraud, then, undoubtedly, there must be a review of the judgment, but that is not the case here. To hold that the code, concerning review of judgments, governs such a case as the present would be to deny the appellees all relief, because they have discovered no new matter since the rendition of the judgment. They knew then, as well as they know now, the terms of the agreement of compromise." 6 The case of Quick v. Goodwin is disapproved. The earlier cases cited above, in one of which the point was decided directly the other way, are not noticed, but they must be regarded as overruled. An action to vacate or annul a judgment differs materially from an action to review. The action to review rests either upon some error appearing on the face of the record or new matter discovered, affecting the original cause of action. A proceeding to vacate may be, and usually is, based upon some wrongful act of the opposite party, by which he has obtained an undue advantage, resulting in a judgment in his favor. It is held, therefore, that, although the statute expressly excepts actions for divorce from its provisions authorizing a review, an action may, nevertheless, be maintained to annul or set aside the judgment in such cases. f The case cited was one in which the judgment was void for the rea- son that the court had not obtained jurisdiction of the person of the (e) Nealis v. Dicks. 72 Tnd. 374, 376; (f) Willman v. Willman, 57 Ind. Johnson v. TJnversaw, 30 Ind. 435; 500; Vol. 3, pp. 185,186. Stone v. Lewman, 28 Ind. 97. xxn.] JUDGMENT. 703 defendant. But the reasoning of the court applies to other causes for vacating judgments. To enable a party to vacate a judgment for fraud some injury must appear to have resulted therefrom. If the judgment is right and no agreement of compromise has been fraudulently violated, there is no just ground for equitable relief. 8 If si judgment is obtained in violation of an agreement of compro- ulse, by which an appearance is prevented, it will be set aside. h Where such an agreement has been made, and a judgment taken in iraud of its terms, it should be set aside, although it appears to be right, A justice of the peace has no power to vacate or set aside a judg- ment, whether rendered before him or not.' Nor has the board of county commissioners. 8 SATISFACTION OF JUDGMENTS. 1058. By lapse of time. " Every judgment and decree of any court of record of the United States, or of this or any other state, shall be deemed satisfied after the expiration of twenty years." j This section of the statute is not one of limitation. 11 The right to sue on judgments, is limited by another section of the statute. 1 It is said, in the case of King v. Manville, that a case may come under some of the exceptions enumerated in section 293, and the action may not, therefore, be barred, though more than twenty years may have elapsed after the cause of action accrued, and still the presump- tion of satisfaction would arise under section 305. There is no presumption of satisfaction from the lapse of a shorter time than twenty years." 1059. By payment. Whether payment of a judgment will amount to a satisfaction of it depends, sometimes, upon the question of the authority of the party to whom it is paid to receive payment. (g) Statelar's Adm'r v. Sample's 30; Rogers v. Gwinn, 21 Iowa, 8; Adm'r, 29 Ind. 315. Dobson r. Pearce, 12 N. Y. 156. (h) Nealis v. Dicks, 72 Ind. 374 ; cit- (i) Foist v. Coppin, 35 Ind. 471. ing, Molyneux v. Huey, 81 N. C. 106; (a) Doctor r. Hartraan, 74 Ind. 221, Hibbard v. Eastman, 47 N. H. 507; 229. Carman v. Reynolds, 5 El. & B. 301; (j) R. S. 1881, 305. Phillipson v. Earl of Egremont, 6 A. (k) King v. Manville, 23 Ind. 134. & E. (N. S.) 587; Allen v. Maclellan, (1) II. S. 1881, g 293, sub. 6. 12 Perm. St. 328; Hall v. Holmes, 30 (m) Ante, vol. I., \ 305. Md. 558; Hurlburt r. Reed, 5 Mich. (n) Dodds r. I>(xlds, 57 Ind. 293. 704 JUDGMENT. [CHAP. A payment to the sheriff holding the execution is a satisfaction of the judgment, although the judgment plaintiff may never receive the money, and the defendant may compel an entry of satisfaction. k The attorney of the judgment plaintiff may receive payment and bind him so long as his authority is not revoked, but he has no au- thority to accept less than the full amount due, or to receive any tiling except money. 1 A justice of the peace has a right to receive money due upon a judgment rendered before him, and such payment is a satisfaction. 111 If the judgment has been assigned, still a payment to the judg- ment plaintiff is sufficient, before notice to the defendant of the assign- ment. 11 The clerk of the circuit court may receive payment of a judgment, but not in any thing but legal tender money. Prior to the enactment of the present statute, in 1875, a clerk had no authority to receive payment of a judgment. 1 * The effect of the payment of a judgment depends also upon the per- son who makes it. If it is paid by a surety, the judgment is not sat- isfied, but remains in force for his benefit.* 1 So where the payment is made by a replevin bail/ The rule applies to a sheriff who has been compelled to pay the judg- ment by neglecting to return an execution thereon, as required by law. 8 So where a payment is made by a third party, with the agreement that the judgment shall be held by him, or where a party is compelled to pay the same to protect himself or his property against the judgment, he is entitled to be subrogated to the rights of the judgment plaintiff to the extent of such payment, and the judgment is not satisfied/ Payment of less than is due. As a general rule, payment of less than is due will not amount to a satisfaction of the judgment, although it may be accepted as such. (k) Beard v. Millikan, 68 Ind. 231. v. Ross, 44 Ind. 481 ; Hays v. Boyer, 59 (1) Jones v. Kansom, 3 Ind. 327; Ind. 341. Freeman on Jndg., ? 462, 463; K. S. (p) Hays v. Boyer, 59 Ind. 341. 1881, 968; McCormiek v. The Walter (q) R. S. 1881, 1214; Manford v. A. Wood M. and R. M. Co.. 72 Ind. Firth, 68 Ind. 83; Hogshead v. Wil- 518. Hums, 55 Ind. 145; Klippel v. Shields, (m) Herod v. Snyder, 61 Ind. 453. ^A"^ 81 ;. . (r) R. S. 1881, 1214; Jones v. (n) Gamble . Cummins, : Blkf. j^^ ?4 Ind 235; Lewis v. Hicklin, 5 Blkf. 196; R. ( s ) Burhank v. Slinkard, 53 Ind. S. 1881, 604. 493; but see on this point. Freeman on (o) R. S. 1881, 5850; Prather r Jud g-< 2 4G9 > nd authorities cited. m , v ' (t) Freeman on Judg., 48; Spray The State Bank, 3 Ind. 356; Arms- . Rodrnan) 43 Ind . 2 25 wor(l) v. Srotten, 29 Tnd. 40."); Crews XXII.] JUDGMENT. 703 But a payment of a smaller sum may amount to a discharge of a larger debt, where it is made under a valid agreement to that effect, as where it is agreed to be paid by a third party, or where it is paid as a composition for the debt, under an arrangement between the debtor and his creditors. 11 A judgment may be satisfied by the receipt, on the part of the judg- ment plaintiff, of something else than money, if accepted in satisfac- tion, although it may be of less value than the amount due. T The execution of a note governed by the law-merchant is equivalent to a payment in money, unless it appears not to have been the inten- tion of the parties, at the time, to give it that effect. If the note is not payable in bank, it will not amount to a payment unless the judgment plaintiff agrees to accept it as such.* Where several judgments are rendered against parties jointly and severally liable on the same obligation, a payment of one is a satisfac- tion of all of the judgments, except as to costs. y Hmo applied. A payment made to a party holding several judg- ments against the same debtor may be applied by him upon either, in the absence of any direction from the defendant or other person mak- ing such payment. 2 1060. By levy of execution. The levy of an execution, issued on the judgment, upon sufficient property to make the debt is presumed to amount to a satisfaction.* The levy is not necessarily a satisfaction, but only prima facie so, casting upon the judgment plaintiff the onus of showing, before he can take other proceedings upon his judgment, that, from no fault of his, the levy has not proved productive of a complete satisfaction. 1 " The effect of the levy is rather to suspend further proceedings on the judgment until the property levied upon is legally disposed of than a satisfaction of it. If proper steps are taken to realize the amount due, by a sale of the property, and, upon a sale being made, it fails to (u) Fensler v. Prather, 43 Ind. 119; (z) Forelander v. Hicks, 6 Ind. 448. Maxwell v. Day, 45 Ind. 509; ante, (a) Barrett v. Thompson, 5 Ind. 457 ; vol. I., 597. Mclntosh v. Chew, 1 Blkf. 289 ; Stow- (v) Jones v. Kansom, 3 Ind. 327. art v. Nunemaker. 2 Ind. 47; Doe v. (w) Maxwell v. Day, 45 Ind. 509; Dutton, 2 Ind. 309; McCabe v'. Good- Krutsinger v. Brown, 72 Ind. 466. wine, 65 Ind. 288. (x) Maxwell v. Day, 45 Ind. 509. (b) McCabe v. Goodwine, 6"> Ind. (y) The First National Bank of In- 288, 295; Freeman on Ex.. \ 209, and dianapolis v. The Indianapolis Piano authorities cited; Freeman on Judg., Mfg. Co., 45 Ind. 5. 476. 45 706 JUDGMENT. [CHAP. sell for sufficient to pay the judgment, without the fault of the plaint- iff or the officer, it does not amount to a satisfaction. But, if the property levied upon is of sufficient value to pay the judgment, and fails to sell for sufficient, through the fault of the judgment plaintiff or officer, or if the levy is improperly lost or abandoned, the levy is a sat- isfaction. The same must be the result where, the proper steps being taken, the property fails to sell for the want o'f bidders. A levy upon real estate has the same effect as a levy upon personal property in this respect. d A levy on property not of sufficient value to pay the judgment raises no presumption of satisfaction. 6 1061. By the sale of property. Where the proper diligence has been used, and a sale of property levied upon has been made, the sale and payment of the money is a satisfaction to the amount of the money received/ As we have seen, the judgment plaintiff may, by the neglect of him- self or the officer, bind himself to a satisfaction of the judgment to the actual value of the property levied upon. 8 But this is not true where the proper steps have been taken, resulting in a sale of the property. Where a sale of real estate is made to the judgment plaintiff, and the sale is absolutely void on account of an insufficient description, the sale will not amount to a satisfaction, although a deed has been made, and the plaintiff has entered satisfaction of the judgment. 11 So, where the sale is afterward set aside. 1 A void sale, or a sale of property to which the judgment defendant had no title, when the judgment plaintiff becomes the purchaser, is not a satisfaction^ The discharge, with the plaintiff's consent, of a defendant in custody on a capias ad satisfaciendum operates as a discharge of the judgment. k (c) Freeman on Ex., 269. (h) Kercheval v. Lamar, 68 Ind. (d) IS'eff v. Green, MS. case No. 442; Hughes v. Streeter, 24 111. 648. 8427, January 6, 1882 (un reported j ; (i) Johnson v. The State, 80 Ind. Lindley v. Kelley, 42 Ind. 294; Mcln- 2:0. tosh v. Chew, 1 Blkf. 289. ( j) Freeman on Ex., 54. fe) Lindley v. Kelley, 42 Ind. 294, (k) Tatem v. Potts, 5 Blkf. 534; 307. Prentiss v. Hinton, 6 Blkf. 85; "\Vake- (f) McCormick v. The Walter A. man v. Jones, 1 Ind. 517; Freeman on Wood M. & K. M. Co., 72 Ind. 518. Judg., 476. (g) Ante, 1058. XXII.] JUDGMENT. 707 1062. Entry of payment, release, or satisfaction. "Every indorsement of payment, satisfaction, or release, in whole or in part, upon the record or margin thereof of any judgment or decree, or upon any execution or order of sale issued thereon, signed by the judgment plaintiff or his attorney-in-fact ; or by the assignee of such judgment plaintiff (whose assignment is upon or annexed to the record of such judgment or decree and attested by the clerk, when attested by the clerk), upon the record of such judgment or decree ; or by the sheriff upon such execution or order of sale, shall operate as a satisfac- tion or release of such judgment or decree, or of such part thereof so indorsed as paid, satisfied, or released, in favor of subsequent pur- chasers or lienholders in good faith. And when such satisfaction, pay- ment, or release is entered by an attorney-in-fact, such fact shall be noted on the margin of the record or the execution, as the case may be, and such power of attorney shall be recorded in the miscellaneous rec- ords of the recorder's office." l This section of the statute provides the manner of indorsing an en- try of payment, release, or satisfaction. It is for the protection of in- nocent purchasers or others acting upon the faith of such indorsement. Prior to the enactment of this section in 1881, there was no provision for entering satisfaction of judgments, or statute providing what effect should be given to such an entry. It was held, therefore, that an en- try of satisfaction of a judgment had no more force than a mere re- ceipt, and might be varied or controverted by the judgment plaintiff by parol proof. m Under the present statute, the indorsement is constructive notice, and conclusive upon the judgment plaintiff, as between him and sub- sequent purchasers and lienholders in good faith." Where an entry of satisfaction has been procured by fraud, or other- wise improperly entered, without the actual payment or satisfaction of the judgment, the judgment plaintiff may, as between him and the defendant, maintain an action to set aside the entry. The release of a judgment without a satisfaction is binding upon the plaintiff, if made upon a valid consideration, but not otherwise. p 1063. Action to compel an entry of satisfaction. When the defendant has paid the j udgment or satisfied the same in any other way, (1) E. S. 1881, 581. Stewart v. Arinel, 62 Ind. 593; Me- (m) Stewart v. Armel, 62 Ind. 593; Cormick v. The Walter A. Wood M. Lapping v. Duffy, 65 Ind. 229. and R. M. Co., 72 Ind. 518. (n) EtzlerV Evans, 61 Ind. 56. (p) Wray v. Chandler, 64 Ind 140. (o) Reish v. Thompson, 55 Ind. 34; 708 JUDGMENT. [CHAP. he is entitled to an entry of satisfaction, and if it is not made, he may maintain an action to compel the judgment plaintiff to make such en- try.i The statute provides that " satisfaction of a judgment or credits thereon may be ordered for sufficient cause upon notice and motion." r The application may be made by motion and notice. The length of time for which notice shall be given is not provided by the statute. The better practice, under this section, is to file a complaint, stating the facts, and have a summons issued as in other cases. While the statute provides for a motion, a complaint will take its place and be more regular. The question to be determined at the trial is whether the judgment has been satisfied or not. If it is found to have been satisfied, judgment should be so rendered, and the defendant in the action ordered to enter satisfaction, or, upon his failure, that the proper entry be made by the clerk, or some other person to be named in the judgment. If it is shown to have been partially satisfied, judgment should be entered accordingly. 9 Payments made since the rendition of the judgment may be shown, but not such as were made prior thereto on the cause of action. Such payment should have been set up as a defense to the action. REVIVOR OF JUDGMENTS. 1064. Leave to issue execution after ten years. " After the lapse of ten years from the entry of judgment or issuing of an ex- ecution, an execution can be issued only on leave of court, upon mo- tion, after ten days' personal notice to the adverse party, unless he be absent, or non-resident, Or can not be found, when service of notice may be made by publication, as in an original action, or in such man- ner as the court shall direct. Such leave shall not be given unless it be established by the oath of the party, or other satisfactory proof that the judgment, or some part thereof, remains unsatisfied and due." u It has been held that, under this section, no pleadings are contem- plated ; that the statute provides for a mere motion to be heard in a summary way. v The correctness of this ruljng was doubted in a later decision, in which the court say : (q) Blizzard v. Bross, 56 Ind. 74. (u) R. S. 1881, 675. (r) K. S. 1881, 580. (v) Plough v. Keeves, 33 Ind. 181; (s) Igleharfs PI. & Pr., p. 287, 6. Plough v. Williams, 33 Ind. 182. (t) Keeves v. Plough, 41 Ind. 204. XXII.] JUDGMEJTT. 709 " We construe the statute to mean that the judgment defendant, in answer to the notice and motion, may appear aud plead payment or satisfaction of the judgment ; but, whether he appear or not, no execu- tion cuu issue, unless it be established by the oath of the judgment plaintiff, or other satisfactory proof that the judgment, or some part thereof, remains unpaid. If the defendant in the judgment could not plead and prove payment of the judgment, there would belittle use in giving him notice of the motion. In Plough v. Reeves, 33 Ind. 181, the court said, in a similar proceeding between these parties: 'No- pleadings are contemplated or required in a proceeding of this kind. It is a simple motion, ta be heard by the court, in a summary way; the only question being whether the judgment or any part thereof re- mains unsatisfied and due.' We doubt the correctness of this ruling. But we need not overrule the case to sustain the second paragraph of the answer in the case at bar." w But in a still later case the former of these decisions is cited, without comment, to the point that the defendant can not plead. x Much confusion has grown out of these statutory provisions author- izing a party to seek relief by " motion and notice." There is no good reason why such proceedings should not be commenced, in all cases where a question of fact is presented, by a complaint in regular form, and summons issued thereon as the notice. This statute, as intimated by the supreme court, and others of a like kind, should be so con- strued as to authorize a complaint and a regular course of pleading. Where replevin bail has been entered, the judgment defendant is a necessary party to the action, although he may be insolvent. y If the judgment has been assigned in the manner required by the statute, the assignee may maintain the action without joining the as- signor, but if the assignment is such as to pass only an equitable title to the judgment, the assignor must be made a defendant. 55 As the presumption of payment arises after twenty years, the ac- tion to revive must be brought within that time, or it is barred. a As the right to bring the action does not arise until ten years have run, the effect of this is to limit the bringing of the action to ten years. It is said, in the syllabus to a later case, that, in a decree for the fore- closure of a mortgage, the action to revive may be brought within twenty years from its date. b (w) Keeves r. Plough, 46 Ind. 350. (z) Starner v. Underwood, 54 Ind. (x) The Evansville Gas Light Co. v. 48; R. S. 1881, 603. The State, 73 Ind. 219. (a) Strong v. The State, 57 Ind. 428. (y) StnrntT v. Underwood, 54 Ind. (b) The Evansville Gas Light Co. v. 48. The State, 73 Ind. 219. 710 JUDGMENT. [CHAP. There is no difference between a decree of foreclosure and an ordi- nary judgment in this respect. The difference is that the lien of such a decree continues for twenty years, while the lien of an ordinary personal judgment only continues ten years. Therefore, as between the judgment plaintiff and purchasers or iucumbrancers in good faith, the revival of a personal judgment will not affect their rights, after ten years, while in case of a decree of foreclosure, they take subject to the lien for twenty years. The right to revive exists the same in each case, but the effect may be different as against third parties. The case of the Evansville Gas Light Co. v. The State decides no more than this. The revival after the lien has expired does not revive the old lien. The judgment is only a lien from the time it is revived. On the trial the plaintiff must show : 1. The recovery of a valid judgment. . 2. That ten years have elapsed since its rendition or the issuing of execution. 3. That there is some amount due thereon and unpaid. 1065. By or against executors and administrators un- necessary. Under the common-law practice no execution could issue in favor of the executor or administrator of the judgment plaintiff without reviving the judgment by scire fadas. d The present statute makes it unnecessary that the judgment should be revived. 6 The cases cited hold that although a revival in such cases is unnecessary, that the common-law right to have the judgment revived is not taken away by the statute and the proceeding may be maintained. Where the judgment is personal an execution can not issue after the death of the judgment defendant. It is otherwise where the judg- ment is in rem and can only be executed in a particular manner pro- vided by the judgment. The distinction is thus stated : " There seems to be a distinction as to the effect of the death of a sole defend- ant after judgment and before execution, between judgments in per- sonam, -which can not be executed except by a writ that authorizes the officer to levy upon any property of the defendant subject to execu- tion, and judgments in rem, which require no writ of execution, and can not be executed except in the particular manner decreed. In the (c).Applegate v. Edwards, 45 Ind. (e) R. S. 1881, ? 2294; TVynnt v. 329, 337. TVyant, 38 Ind. 48; Aimstrong r. Mo- i;l) AValker v. Hood, 5 Blkf. 266; Laughlin, 49 Ind. 370; Mavity n Sh.iup v. Con well, 2 Ind. 497. Eastrideje, 67 Ind. 211. XXH.] JUDGMENT. 71 J former class ot cases, a writ of execution issued after the death of a sole defendant is void ; in the latter class of cases, where the decree is its own authority for execution, and where nothing can be done ex- cept what was adjudicated in the lifetime of the parties, it may be ex- ecuted after the death of a sole defendant." f 1066. Revivor upon death of judgment defendant. "In case of the death of any judgment debtor the heirs, devisees, or legatees of such debtor, or the tenant of real property owned by him and affected by the judgment, and the personal representatives of the de- cedent, may, after the expiration of one year from the time of grant- ing letters testamentary, or of administration upon the estate of the decedent, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively. " g This section only applies to personal judgments. If the action is in rem, and the judgment orders the sale of specific property no revivor is necessary. b If the judgment is in rem, with a personal judgment over, the per sonal judgment may be revived. The " tenant of real property," named in the statute, means a per- son holding by a lease as tenant, and does not include the widow. Her rights can not be affected by the judgment, therefore she is not a necessary party in an action to revive under this section. ' If the widow was married to the judgment defendant after the judgment lien attached she has no interest in the real estate as against the judgment.J The statute requires that the judgment creditor, his representative or attorney, shall file an affidavit that the judgment has not been satis- fied to his knowledge or information and belief, and shall specify the amount due thereon and the property sought to be charged. k Summons must issue and issues be formed as in other cases, and if there is a finding against the defendants the judgment shall order the sale of the property sought to be charged, or so much as may be neces- sary to pay the amount found due, and costs, as required by the former judgment. 1 (f) Kellogg v. Tout, 65 Ind. 146, (i) Hill v. Button, 47 Ind. 692. 151; The State v. Michaels, 8 Blkf. (j) Armstrong v. ilcLaughlin, 49 436; Louden v. Day, 6 Ind. 7. Ind. 370. (g) R. S. 1881, 621. (k) R. S. 1881, 622. (h) Kellogg v. Tout, 65 Ind. 146; (1) R. S. 1881, 623. Hays v. Thomae, 5G N. Y. 521 ; ante, 1063. 712 JUDGMENT. [CHAP. The statute formerly required that notice of the application should describe the judgment." 1 But the section has been amended. While no judgment can be rendered against the personal representa- tive, the statute makes him a necessary party in all cases. The action maybe brought against the other parties named "and the personal representative." This should be so, as only personal judgments can be revived, and as to such judgments the executor or administrator repre- sents the estate, and it is his duty to pay the same out of assets first liable for the payment of debts. It is evident, also, that the action can not be maintained until letters of administration have been taken out, as it can not be brought until "after the expiration of one year from the time of granting letters testamentary or of administration." The action must be brought against the personal representative, and the year usually allowed for the settlement of the estate is given before the property in the hands of the heir or legatee can be made liable. It is not necessary that all of the heirs should be made parties in all cases. If the real estate is devised, the devisee only is a necessary party, together with the personal representative. Where the real estate is in the possession of a tenant, he should be joined with the owner. Where the land has passed into the hands of third parties subsequent to the death of the decedent, they should be made parties to bind their interests. 1067. Defenses in actions to revive. To entitle the plaintiff to recover, it must appear that the judgment is valid and one that can be revived. The code of 1852 provided, specifically, that, the defendant might answer, denying the judgment or setting up any defense which had arisen subsequently." The present statute contains no such direct provision, but these de- fenses may still be made. The defendant can not go back of the judgment and assert a defense that might have been made to the original cause of action. Nor can the judgment be attacked for error. But it may be shown in defense that the judgment is void for want of jurisdiction or other cause. p It is competent for the defendant to prove the satisfaction of the (m) 2 R. S. 1876, p. 265, 644. (p) Ante, 1038, 1057, and authori- (n) 2 R. S. 1876, p. 266, 645. ties cited, (o) Kiser v. Winans, 20 Ind. 428; Reeves v. Plough, 41 Ind. 204. XXH.] JUDGMENT. 713' judgment in whole or in part, either by payment or in any other man- ner.' 1 The real question to be determined is, whether, admitting the judg- ment to be valid, there is any amount due thereon and unpaid. The burden of proving that there is an amount due is with the plaintiff, but when a valid judgment is shown, it will prove the amount due by calculation. This is enough to sustain the plaintiff's cause of action, and if there has been any payment made, or other matter amounting to a satisfaction or release, the proof of this must come from the de- fendant. Where the action is against the heirs, devisees, legatees, 01 tenant, and the personal representatives, under section 621, the object is to reach specific property devised or descended to the defendants. In such case it must be shown by the plaintiff that the judgment de- fendant owned the property described in the affidavit, that it was af- fected by the judgment, and that the defendants who are charged as heirs, devisees, or legatees, are now the owners. Where the action is against the tenant, he must be shown to be in possession as tenant. The judgment to be revived being a personal one, the personal repre- sentative is a necessary party, but no judgment can be rendered against him. The only judgment that is authorized by the statute is for the sale of the specific property described in the plaintiff's affi- davit/ ACTIONS ON JUDGMENTS. 1068. Are debts of record, and may be collected by suit. It is now well settled by authority that a judgment is a debt of rec- ord that may be made the foundation of an action, although it is in full force as an existing lien, and execution might be issued thereon. 8 The suit may be brought in the court in which the judgment was rendered, or in any other court of competent jurisdiction. 1 A judgment for costs may be sued upon as other judgments. 11 A judgment in rem can not be made the subject of an action. There must be a personal judgment rendered on actual service of process, or an appearance to the action. v In pleading the judgment, a copy need not be 1 made part of the complaint. w (q) Reeves v. Plough, 46 Ind. 350. (u) Palmer v. Glover, 73 Ind. 529. (r) Hill v. Sutton, 47 Ind. 592. (v) Henrie v. Sweasey, 5 Blkf. 335; (s) Davidson v. Nebaker, 21 Ind. Roose v. McDonald, 23 Ind. 157 ; Lip- 334; Gould v. Hayden, 63 Ind. 443; perd v. Edwards, 39 Ind. 165. Palmer v. Glover, 73 Ind. 529; Ward (w) Lytler. Lytle, 37 Ind. 281; ante, v. Haggard, 75 Ind. 381. vol. I., 417, and cases cited. (t) Gould v. Hwyden, G3 Ind. 44^; Hansford v. Van Anken, 79 Ind. 157. 714 JUDGMENT. [CHAP. But the allegations of the complaint must show the recovery of a judgment against the defendant. 1 It is not necessary to allege that the judgment is still in force. If it has been reversed, set aside, vacated, or satisfied these are matters of defense. y The right to sue upon a judgment extends to judgments rendered in another state. z And to judgments of justices of the peace, whether of this or an* other state." The fact that execution can not issue for ten days on a judgment taken by default, before a justice of -the peace, does not prevent an action being brought thereon within that time. b In suing upon a judgment of a court of special jurisdiction, the complaint must show, by proper averments, that the court had juris- diction of the subject-matter and of the person. This may be done by stating the facts showing jurisdiction, or by using the language of the statute, that " the judgment was duly given," which is held to be sufficient. The statute dispensing with an allegation of the facts showing juris- diction applies to foreign judgments.* 1 The jurisdiction of a court of general or superior jurisdiction over the subject-matter, or of the person will be presumed in the absence of a showing to the contrary. 6 1069. Defenses. The defendant may defend against the judg- ment on the ground of want of jurisdiction of the subject-matter of the former action, or of the person/ Or that it is void for other reasons. 8 (x) Lipperd v. Edwards, 39 Ind. (c) R. S. 1881, 369; ante, vol.1., 165. 398, and cases cited. (y) Campbell v. Cross, 39 Ind. (d) Ante, vol. I., 398; Crake v. 155 ; post, 1069. Crake, 18 Ind. 156. (z) Cole v. Driskell, 1 Blkf. 16 ; Cone. (e) Lytle v. Lytle, 37 Ind. 281 ; ante, v. Cotten, 2 Blkf. 82; Davis v. Lane, 2 vol. I., 5; The State v. Ennis, 74 Ind. Ind. 548; Wiley v. Strickland, 8 Ind. 17. 453; Snyder v. Snyder, 25 Ind. 399. (f) Holt v. Alloway, 2 Blkf. 108; (a) Travel v. Springfield Township, Davis v. Lane, 2 Ind. 548. La Porte Co., 34 Ind. 296; Cole v. (g) Collins v. Fraiser, 27 Ind. 477; Driskell, 1 Blkf. 16. . Kenedy v. The State, 53 Ind. 54'2 ; (b) Fravel v. Springfield Township, Evans v. The State. 56 Ind. 459; The La Porte Co., 34 Ind. 296. State v. Forrey, 64 Ind. 260. XXII.] JUDGMENT. 715 If the objection appears upon the face of the complaint, it may be taken by demurrer. h Otherwise it must be presented by answer.' The judgment of a court may be defended against on the ground that it Avas obtained by fraud.J The same fraud that would entitle the defendant to vacate the judg- ment will furnish him a defense in an action thereon. k The merits of the original cause of action, or the right of the plaint- iff to recover judgment, admitting that the court had jurisdiction, and that it was not obtained by fraud, can not be inquired into. If the judgment is valid, it is conclusive. 1 A. want or failure of consideration is no defense. It may be shown that since the judgment was rendered it has been satisfied, released, vacated, or reversed. The right of a party to show that the attorney who appeared for him was unauthorized has been fully considered in another part f this work. (h) Cone v. Cotton, 2 Blkf. 82 ; Wil- v. Lane, 2 Ind. 548; Brown v. Trulock, ley v. Strickland, 8 Ind. '453 ; Snyder 4 Blkf. 429 ; ante, 1038, and authori- ty Snyder, 25 Ind. 399. ties cited. (i) Willey v. Strickland, 8 Ind. 453. (m) Brown v. Trulock, 4 Blkf. 429. (j) Holt v. Alloway, 2 Blkf. 108; (n) Fravel v. Springfield Tp., La Brown v. Trulock, 4 Blkf. 429. Porte Co., 34 Ind. 296. (k) Freeman on Judg., 435; ante, (o) Ante, vol. I., g 227, 228, and au- 1057 ; Nealis v. Dicks, 72 Ind. 374. thorities cited. (1) Freeman on Judg., $ 435; Davis LAW TREATISES AND REPORTS PUBLISHED BY ROBERT CLARKE & CO., 61, 63, and 65 West Fourth Street, Cincinnati, Ohio. ATKINSON. Township and Town Officers' Guide for the State of Indiana. By F. Atkinson. I2mo. Net. Cloth, $2.00; sheep, 2 50 BARTON. History of a Suit in Equity, from its Commencement to its Final Termination. By Charles Barton. New edition, revised and enlarged, by Hon. H. H. Ingersoll. Net. 2 50 BATES. Ohio Pleadings, Parties, and Forms under the Code. By Clement Bates. 2 vols. 8vo. 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