[1881 S., p. 240. In force September 19, 1881.]

338. (335.) Definition.-81. The pleadings are formal allegations by the parties of their respective claims and defenses, for the judgment of the court.

339. (336.) Distinct forms abolished.-82. All the distinct forms of pleading heretofore existing, inconsistent with the provisions of this act, are hereby abolished; and hereafter the forms of pleadings 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.

340. (337.) What allowed.-83. The only pleadings allowed are— First. The complaint by the plaintiff.

Second. The demurrer and answer by the defendant.
Third. The demurrer and reply by the plaintiff.

When a counter-claim is pleaded the reply thereto ends the pleading. Welch v.
Bennett, 39 Ind. 136.

341. (338.) Complaint-Contents-Paragraphs numbered.-84. The first pleading on the part of the plaintiff is the complaint. The complaint shall contain

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.

The firm name of a
Hauser v. Smith, 13

As to the title of the action, see Ammerman v. Crosby, 26 Ind. 451.
The complaint should contain the full names of all the parties.
partnership is insufficient. Livingston v. Harvey, 10 Ind. 218;
Ind. 532; Pollock v. Dunning, 54 Ind. 115; Hellyer v. Bowser, 76 Ind. 35; Bascom v.
Toner, 5 App. 229.

A failure to give full names is matter in abatement. Peden v. King, 30 Ind. 181;
Sinton v. Steamboat, 46 Ind. 476; Railroad Co. v. Burress, 82 Ind. 83.

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 intended.

A complaint showing a good cause of action as to any part of the demand is good on demurrer. Howev. Dibble, 45 Ind. 120.

A complaint must show a good cause of action in favor of all those who join as plaintiffs. Harding v. Church, 20 Ind. 71; Parker v. Small, 58 Ind. 349; Brumfield v. Drook, 101 Ind. 190; Brown v. Critchell, 110 Ind. 31.

Pleadings should state facts, and not conclusions, or legal propositions, nor matters of which courts take notice. Wilson v. Clark, 11 Ind. 385; Clark v. Lineberger, 44 Ind. 223; Jackson v. Farlow, 75 Ind. 118; Penn. Co. v. McCormick, 131 Ind. 250.

A complaint, insufficient on demurrer where no exception is taken, is sometimes cured by verdict. Hostetler v. State, 62 Ind. 183; Charlestown v. Hay, 74 Ind. 127; Clegg. Waterbury, 88 Ind. 21; Railway Co. v. Harrington, 92 Ind. 457; New v. Walker, 108 Ind. 365; Old v. Mohler, 122 Ind. 594.

Uncertainty in a complaint is reached, not by demurrer, but by a motion to make it more certain. Walterhouse v. Garrard, 70 Ind. 400; Railway Co. v. Gaines, 104 Ind. 526; Jones v. State, ex rel., 112 Ind. 193; Railroad Co. v. Wynant, 119 Ind. 539.

Third. Where the complaint contains more than one cause of action, each shall be distinctly stated in a separate paragraph, and numbered.

Each paragraph must be good within itself. Day v. Vallette, 25 Ind. 42; Mason r. Weston, 29 Ind. 561; Potter v. Earnest, 45 Ind. 416; McCarnan v. Cochran, 57 Ind. 166. A cause of action may be stated in different forms in separate paragraphs. Snyder v. Snyder, 25 Ind. 399.

But one paragraph is necessary to foreclose a mortgage securing several notes. Buck v. Axt, 85 Ind. 512.

All breaches of a contract may be joined in the same paragraph. Smiley v. Deweese, 1 App. 211.

Fourth. A demand of the relief to which the plaintiff may suppose himself entitled.

If the recovery of money be demanded, the amount thereof shall be stated.

One prayer for relief to a complaint of several paragraphs is sufficient. Spears r. Ward, 48 Ind. 541; Malady v. McEnary, 30 Ind. 273.

Failure to demand relief is not cause for demurrer. Lowry v. Dutton, 28 Ind. 473; Baker v. Armstrong, 57 Ind. 189.

A demand for relief may be sufficient without stating a specific amount. Burns, 31 Ind. 390; Railway Co. v. Smith, 58 Ind. 575.

Eaton r.

The prayer for relief may be amended at any time. Billingsley v. Dean, 11 Ind. 331. This section does not apply to justices' courts. Crocker v. Hoffman, 48 Ind. 207.

342. (339.) Demurrer, causes therefor.-85. The defendant may demur to the complaint when it appears upon the face thereof, either— First. That the court has no jurisdiction of the person of the defendant or the subject of the action.

The circuit court being one of general jurisdiction, its authority to act need not affirmatively appear in the complaint. Brownfield v. Weicht, 9 Ind. 394; Ragan v. Haynes, 10 Ind. 348; Godfrey v. Godfrey, 17 Ind. 6.

When the action is local the question of jurisdiction may be raised by demurrer. Loeb v. Mathis, 37 Ind. 306; Stanford v. Stanford, 42 Ind. 485.

Second. That the plaintiff has not legal capacity to sue.

Want of legal capacity to sue only goes to some legal disability, as infancy, idiocy, coverture, etc. Dale v. Thomas, 67 Ind. 570; Nave v. Hadley, 74 Ind. 155; Traylor v. Dykins, 91 Ind. 229; Pence v. Aughe, 101 Ind. 317; Board v. Kimberlin, 108 Ind. 449; Brown v. Critchell, 110 Ind. 31; Campbell v. Campbell, 121 Ind. 178.

A demurrer for want of facts will not raise the question of legal capacity to sue. Edwards v. Beall, 75 Ind. 401.

Third. That there is another action pending between the same parties for the same cause.

This clause refers to actions pending in this state. De Armond v. Bohn, 12 Ind. 607; Eaton, etc., R. R. Co. v. Hunt, 20 Ind. 457.

It does not apply to cross-complaints filed in an action. Debolt v. Carter, 31 Ind. 355.

Fourth. That there is a defect of parties, plaintiff or defendant.

A demurrer for defect of parties must designate the proper parties. Kelley v. Love, 35 Ind. 106; Vansickle v. Erdelmeyer, 36 Ind. 262; Marks v. Railway Co., 38 Ind. 440; Leedy v. Nash, 67 Ind. 311.

If a defect of parties is apparent on the face of the complaint, the objection should be taken by demurrer. Thomas v. Wood, 61 Ind. 132; Talmager. Bierhouse, 103 Ind. 270.

A defect of parties means too few, and not too many, parties. Bennett v. Preston, 17 Ind. 291; Hill v. Marsh, 46 Ind. 218.

Misjoinder of parties is not cause for demurrer. Redelsheimer v. Miller, 107 Ind. 485. If a husband is not joined with a wife when necessary, there is a defect of parties. Barnett v. Leonard, 66 Ind. 422.

A demurrer for want of facts raises no question as to parties. Collins v. Nave, 9 Ind. 209; Greensburgh Co. v. Sidener, 40 Ind. 424; Leedy v. Nash, 67 Ind. 311.

If a defect of parties is not raised the question is considered waived. Groves v. Ruby, 24 Ind. 418; Bray v. Black, 57 Ind. 417; Thomas v. Wood, 61 Ind. 132.

Fifth. That the complaint does not state facts sufficient to constitute a cause of action.

A demurrer may be general for want of facts, but if special it will be limited to the matters specified. State, ex rel., v. Leach, 10 Ind. 308; Sluss v. Shrewsbury, 18 Ind. 79. If a demurrer uses language equivalent to that of the statute, it is sufficient. Pace t. Openheim, 12 Ind. 533; Stanley v. Peeples, 13 Ind. 232; Petty v. Board, 70 Ind. 290; Ross v. Menefee, 125 Ind. 432.

It is not sufficient to allege that the pleading demurred to is not sufficient in law. Tenbrook v. Brown, 17 Ind. 410; Porter v. Wilson, 35 Ind. 348; Gordon v. Swift, 39 Ind. 212.

Nor that the pleading does not entitle the party to the relief demanded. Railroad Co. v. Washburn, 25 Ind. 259; Kemp v. Mitchell, 29 Ind. 163.

Nor that the pleading does not state facts sufficient to constitute a complaint. Pine Tp. . Huber Co., 83 Ind. 121; Grubbs v. King, 117 Ind. 243.

A demurrer for want of facts raises the question of the right of the plaintiff to sue. Pence v. Aughe, 101 Ind. 317; Wilson v. Galey, 103 Ind. 257; Sinker v. Floyd, 104 Ind. 291; Farris v. Jones, 112 Ind. 498.

If the facts stated entitle the plaintiff to any relief the demurrer is not well taken. Bennett v. Preston, 17 Ind. 291; Culbertson v. Munson, 104 Ind. 451; Owen Tp. v. Hay, 107 Ind. 351.

Demurrer for want of facts will raise the question as to absence of a bill of particulars, or necessary exhibits. Wolf v. Schofield, 38 Ind. 175; Stafford v. Davidson, 47 Ind. 319; Landon v. White, 101 Ind. 249.

Sixth. That several causes of action have been improperly joined And for no other cause shall a demurrer be sustained.

If several causes of action are improperly joined objection should be taken by demurrer. Bougher v. Scobey, 16 Ind. 151; Fritz v. Fritz, 23 Ind. 388; Langsdale v. Woollen, 120 Ind. 16.

A misjoinder occurs when causes of action of different classes are united in the same complaint. Lane v. State, ex rel., 27 Ind. 108.

Actions for tort and upon contract can not be joined. Boyer v. Tiedeman, 34 Ind. 72. A demurrer alleging want of facts will not raise the question of misjoinder of actions. Cole v. Bank, 60 Ind. 350; Nesbit v. Miller, 125 Ind. 106.

A demurrer to an answer to a bad complaint reaches back, and should be sustained to the complaint. Price v. R. R. Co., 18 Ind. 137; McEwen v. Hussey, 23 Ind. 395; Kretsch v. Helm, 45 Ind. 438; Gould v. Steyer, 75 Ind. 50.

A demurrer to an answer will not extend to a complaint on account of defect of parties. McEwen v. Hussey, 23 Ind. 395.

If the complaint contains a good paragraph, a demurrer to an answer will not reach the complaint. Tracewell v. Peacock, 55 Ind. 572.

Demurrers to pleas in abatements do not extend to complaints. Price v. Railroad Co., 18 Ind. 137; Railway Co. v. Foster, 107 Ind. 430.

After answer to the merits, a demurrer can not be filed to the complaint until the answer is withdrawn by leave of court. Morrison v. Ross, 113 Ind. 186.

Filing answer pending a demurrer, is a waiver of the demurrer. Morrison v. Ross, 113 Ind. 186; Moore v. Glover, 115 Ind. 367.

On demurrer, it is presumed that the contract sued on is verbal, unless the contrary is shown in the complaint. Goodrich v. Johnson, 66 Ind. 258.

A party who amends, after demurrer sustained to his pleading, can not except to the ruling thereon. Ham v. Carroll, 17 Ind. 442.

A defective prayer for relief, if the facts stated be sufficient to warrant any kind of relief, is not cause for demurrer. Baker v. Armstrong, 57 Ind. 189.

It is presumed that a party was injured by the sustaining of a demurrer to a good pleading. Travellers' Co. v. Noland, 97 Ind. 217.

If the demurrer is to an entire pleading of several paragraphs, one good paragraph will be sufficient to withstand the demurrer. Romine v. Romine, 59 Ind. 346; Bayless v. Glenn, 72 Ind. 5; Redelsheimer v. Miller, 107 Ind. 485.

If a demurrer refers to each paragraph by number, and alleges that neither is sufficient, it will be a several demurrer. Rennick v. Chandler, 59 Ind. 354; Stone v. State, 75 Ind. 235; Stribling v. Brougher, 79 Ind. 328; Carver v. Carver, 97 Ind. 497; Railway Co. v. Dailey, 110 Ind. 75.

343. (340.) Demurrer sustained for misjoinder-Proceedings.— 86. Where a demurrer is sustained on the ground of several causes of action being improperly joined in the same complaint, the court shall order the misjoinder to be noted on the order-book and cause as many separate actions to be docketed between the parties as there are causes decided by the court to be improperly joined, and each shall stand as a separate action, and the plaintiff shall thereupon file a complaint in each of the above cases, to which the defendant shall enter his appearance and plead and go to trial, or suffer a default, in the same manner as in the original action.

344. (341.) Misjoinder not ground for reversal.-87. No judgment shall ever be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of action.

The supreme court will not reverse for misjoinder of causes of action. Rennick v. Chandler, 59 Ind. 354; Coan v. Grimes, 63 Ind. 21; Carnahan v. Chenoweth, 1 App. 178. If there is both a misjoinder of parties and actions, the judgment may be reversed. Tobin v. Connery, 13 Ind. 65.

345. (342.) Pleading over-Amendment-Terms.-88. If the court sustain or overrule a demurrer, the party affected by such ruling may plead over or amend, upon such terms as the court may direct, and on payment of costs occasioned by the demurrer.

It is a right a party has to amend which can not be denied him in the absence of sham or frivolous pleading. Ewing v. Patterson, 35 Ind. 326.

The filing of an amended pleading after a ruling on demurrer, waives all error as to such ruling. Kennedy v. Anderson, 98 Ind. 151.

346. (343.) Objection by answer, when.-89. Where any of the matter enumerated in section eighty-five [§ 309] do not appear upon the face of the complaint, the objection (except for misjoinder of causes) may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived

the same, except only the objection to the jurisdiction of the court over the subject of the action, and except the objection that the complaint does not state facts sufficient to constitute a cause of action: Provided, however, That the objection that the action was brought in the wrong. county, if not taken by answer or demurrer, shall be deemed to have been waived.

That a complaint does not state facts sufficient to constitute a cause of action may be first raised in the supreme court. Bolster v. Catterlin, 10 Ind. 117; McClure v. McClure, 19 Ind. 185; Strader v. Manville, 33 Ind. 111; Ford v. Booker, 53 Ind. 395.

Objection that the court had no jurisdiction over the subject-matter, may be first raised in the supreme court. Riley v. Butler, 36 Ind. 51; McGoldrick v. Slevin, 43 Ind. 522; Harris v. Harris, 61 Ind. 117; Boys v. Simmons, 72 Ind. 593.

It is only the complaint as an entirety that can be first questioned in the supreme court. McCallister v. Mount, 73 Ind. 559; Wagner v. Wagner, 73 Ind. 135; United States Co. v. Rawson, 106 Ind. 215; Ludlow v. Ludlow, 109 Ind. 199; Branch v. Faust, 115 Ind. 464; Ashton v. Shepherd, 120 Ind. 69.

There must be an entire failure to allege a necessary fact in order to warrant a reversal by the supreme court for want of a good complaint, when its sufficiency is first questioned in such court. Smith v. Smith, 106 Ind. 43; Taylor v. Johnson, 113 Ind. 164; Burkhardt v. Gladish, 123 Ind. 337.

In the absence of the evidence the supreme court will presume that a defective complaint was cured by evidence if it could be so cured, when objections to its sufficiency is first raised in such court. Burkett v. Holman, 104 Ind. 6; Brown v. Searle, 104 Ind. 218; West v. Hayes, 104 Ind. 251.

On appeal from a judgment by default the supreme court will not presume that any fact not stated in the complaint was proven. Old v. Mohler, 122 Ind. 594.

The defendant may appeal from a judgment by default and assign the insufficiency of the complaint without moving to set aside the default. Strader v. Manville, 33 Ind. 111; Wright v. Norris, 40 Ind. 247.

The sufficiency of a counter-claim may be first questioned in the supreme court. Campbell v. Routt, 42 Ind. 410.

The sufficiency of an answer can not first be questioned in the supreme court. Evansville v. Martin, 103 Ind. 206.

It seems that the sufficiency of a complaint to review a judgment can only be questioned first in the supreme court for want of facts. Hornady v. Shields, 119 Ind. 201. Objections to complaints not taken by demurrer or answer, are waived when they do not fall within the exceptions of the statute. Atkinson v. Mott, 102 Ind. 431; Lee v. Basey, 85 Ind. 543.

A demurrer will not usually lie to a part of a paragraph, the remedy being by motion to strike out. O'Haver v. Shidler, 26 Ind. 278; Beals v. Beals, 27 Ind. 77.

A demurrer will lie to each breach assigned in an action on a bond. Colburn v. State, ex rel., 47 Ind. 310; Sheetz v. Longlois, 69 Ind. 491; Rero v. Tyson, 24 Ind. 56.

347. (344.) Demurrer to part-Answer to residue.-90. The defendant may demur to one or more of the several causes of action alleged in the complaint, and answer as to the residue.

348. (345.). Demurrer overruled-Judgment.-91. The judgment upon overruling a demurrer shall be that the party shall 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 record that the merits of the cause have been fairly determined.