Lincoln Mortgage & Trust Co. v. Hutchins ( 1898 )

SULLIVAN, J.

This was an action in tbe district court of Lancaster county to foreclose a real estate mortgage. Tbe first paragraph of tbe petition is as follows: “Tbat heretofore, to-wit, on December 18, 1889, tbe defendants Jane G-. Hutchins and Charles H. Hutchins executed and delivered to tbe Clark & Leonard Investment Company a promissory note, with coupons annexed, a copy whereof, with the unpaid coupons, is hereto annexed and made a part hereof and marked ‘Exhibit A.’ ” The Badger Lumber Company, being a party defendant, filed a motion to strike from the paragraph of the petition above quoted the words “and made a part hereof” for the alleged reason that the same were redundant and irrelevant. The motion was overruled, and a final decree having been rendered in the case- the appellant brings the record here for review.

The correctness of the ruling on the motion to strike is the only question presented for decision. The motion, it will be observed, did not assail the plaintiffs’ right to attach the copies to the petition, bnt was directed only against the attempt to mate them a substantive part of the pleading. By section 129. of the Code of Civil Procedure, any instrument for the unconditional payment of money only may he attached to and made a part of a pleading founded thereon. Bnt this action does not fall within the provisions of that section. It is not founded on an instrument for the unconditional payment of money only. Its purpose is to ascertain the amount of the plaintiffs’ claim and appropriate the land described in the mortgage to its payment. In an action of foreclosure there is no authority in the statute for making attached copies part of the petition or answer, and a party cannot properly make out his case by reference to such copies. The essential facts upon which the right of recovery depends should be stated in the pleading. (Post v. Garrow, 18 Neb. 682.) Still, it has been held in this state, contrary to the great weight of authority elsewhere, that attached copies become a part of the pleading when they are made so by averment. (Pefley v. Johnson, 30 Neb. 529.) From this it results that the words which the defendant sought to have stricken out were not, strictly speaking, redundant or irrelevant. The motion lacked technical adaptation to the purpose to be attained, and there was, therefore, no error in refusing to sustain it.

But even if the court had erred in overruling the motion, a reversal of the judgment would not follow. A party has no absolute right to have his adversary’s pleadings pruned to suit his fancy.. A reviewing court will ohly interfere in such matters where it appears that the denial of a motion to correct a pleading was not only erroneous, bnt prejudicial to the substantial rights of the moving party. (Keesling v. Watson, 91 Ind. 578; McFall v. Machine Co., 90 Ind. 148; Walker v. Larkin, 127 Ind. 100, 26 N. E. Rep. 684; Haug v. Haugan, 51 Minn. 558, 53 N. W. Rep. 874; Madden v. Minneapolis & St. L. R. Co., 30 Minn. 453, 16 N. W. Rep. 263; Columbus & W. R. Co. v. Bridges, 86 Ala. 448, 5 So. Rep. 864; Goldsmith v. Picard, 27 Ala. 142.) The judgment of the district court is

AFFIRMED.