State ex rel. Miller v. Wills , 26 Ind. App. 329 ( 1901 )

Henley, C. J.

This was an action to review a judgment of the Boone Circuit Court for error of law apparent on the face of the record. The appellant in this action had recovered a judgment in the Boone Circuit Court against the appellee David M. Henry and Patrick J. Ryan, administrator de bonis non of the estate of Christian S. Wesner, deceased, for breach of the bond of said Ryan as such administrator. • The complaint upon which the judgment was recovered that is,here sought to be reviewed is in two paragraphs. In the first paragraph the recovery was sought for an alleged breach of the administrator’s bond; in the second paragraph the recovery was sought independent of the bond. A trial was had by the court, and a special finding of facts was made and conclusions of law stated thereon, and the judgment rendered, which is here sought to be reviewed.

The complaint to review in the case at bar is in substance as follows: That on the 22nd day of September, 1896, the State ex rel. George E. Hiller filed its complaint in two paragraphs in the Boone Circuit Court of Indiana-against David H. Henry and Patrick J. Ryan, administrator de bonis non of the estate of Christian S. Wesner, deceased, and against Patrick J. Ryan in his individual capacity, on a certain bond alleged to have been executed on the 25th day of June, 1895, by the said Ryan as principal, and the said Henry as surety, to the State of Indiana, in the penal sum of $500, conditioned that the said Ryan would faithfully discharge his duties according to law as administrator de bonis non of the estate of said Wesner, deceased; that on said date summons was issued upon said complaint for said Henry and said Ryan, who appeared to said action on the 12th day of October, 1896, which summons was duly served and returned by the sheriff on the 23d day of September, 1896; that on the 28th day of November, 1896, the defendants in said action aforesaid filed their separate demurrers to each paragraph of said complaint, and the appellee David H. Henry filed his separate demurrer to each paragraph of said complaint, which demurrers were on said day overruled and excepted to. The complaint then continues: “That afterwards, on said date, the defendants in said action filed their answer in denial to each paragraph of the complaint; that on the 28th day of June, 1897,-without any record of the submission of said cause for trial, without trial of said cause appearing of record, the court filed in said cause its special finding of facts and conclusions of law thereon, which conclusions of law this plaintiff excepted to at the time; that on said date the court entered judgment on said special finding of facts and conclusions of law in favor of the plaintiff in said action and against the said Patrick J. Eyan for the sum of $672, and costs of suit, and the sum of $500 against this plaintiff and Patrick J. Eyan on said administrator’s bond sued on, and costs of suit. And on the 1st day of July, 1897, the defendants in said action filed their motion for a new trial, which was overruled by the court on the 22nd day of April, 1898, and excepted to at the time by the defendants to- said action; that a full, true, and complete certified transcript of said judgment and proceedings marked A is filed herewith and is made a part hereof. The plaintiff avers that the following errors appeared in said proceedings and judgment: (1) That the court erred in overruling the demurrer of the defendants in said action to each paragraph of said complaint; (2) that the court erred in overruling the separate demurrer of this plaintiff to each paragraph of said complaint; (3) that the first paragraph of said complaint does not state facts sufficient to constitute a cause of action against this plaintiff; (4) that the second paragraph of said complaint does not state facts sufficient to constitute a cause of action against this plaintiff; (5) that there is no record of the submission of said cause for trial and of trial of said cause, and the court erred in entering said special finding of facts and conclusions of law and judgment thereon, and the same are irregular, illegal,' and void on account of there being no submission of said cause for trial, and on account of there having been no trial of said cause appearing of record; (6) that the court erred in its conclusions of law stated upon said special finding of facts; (7) that the court erred in overruling the motion of defendants in said action for a new trial. Wherefore, plaintiff prays judgment”, etc.

We think this complaint is fatally defective. The late decisions of the Supreme Court of this State are directly in ■ point upon this question, and it has been held that the complaint in an action to review a judgment must contain in the body thereof, enough of the pleadings in the cause sought to be reviewed to present the question of the alleged error without resorting to the transcript of the record filed with the complaint as an exhibit. It was said in Jamison v. Lake Erie, etc., R. Co., 149 Ind. 521: “It is alleged as error that the court erred in overruling the demurrer to the second paragraph of answer. Even if it is sufficient to file a copy of the record sought to be reviewed as an exhibit, it would seem, under our practice, that the facts stated in a complaint for review for error of law should be sufficient to withstand a demurrer without resorting to the transcript filed therewith. In actions brought for a new trial on account of newly discovered evidence, the ride is that the pleading and evidence in the original case and the newly discovered evidence may be filed with the complaint as an exhibit. Yet, in such cases, in determining the sufficiency of the complaint the pleadings and evidence in the original case filed with the complaint as an exhibit can not be considered. Neither the pleadings nor evidence in the original case can be resorted to for the purpose of supplying any averment essential to the sufficiency of the complaint. * * * So, in this case, we think the complaint should have stated so much of the complaint and answer, or the substance or nature or character thereof, as was necessary to present the question of the alleged error, without resorting to the exhibit filed with the complaint.” To the same effect see Wabash R. Co. v. Young, 154 Ind. 24.

As to any other error of law, the facts upon which the ruling is based are not shown by the complaint, and it has been repeatedly field tfiat it is essential to a complaint for a review of a judgment for error of law tfiat tfie complaint specifically set forth, tfie ruling of tfie court relied upon as error and tfie facts upon wfiicfi the ruling is based, and tfiat tfie plaintiff at the time of such, ruling excepted thereto. American Ins. Co. v. Gibson, 104 Ind. 336; Findling v. Lewis, 148 Ind. 429.

Tfie judgment is reversed, with instruction to the lower court to sustain tfie appellant’s demurrer to tfie complaint