subject matter of the suit and of one of the defendants, by issuing to and service of process on the other defendant in another county, it had jurisdiction to try and determine the controversy as to both the parties; Lindley v. Kregelo, 121-176.

315. Service - Guardian ad litem for insane. A complaint to review a judgment, on the ground that the court acquired no jurisdiction over the person of the defendant, is bad if the record shows an appearance by or for the defendant. So, where the record shows that the court acquired jurisdiction over the person of defendant by an appearance and answer, the mere fact the latter signed the paper purporting to be an answer out of court and left it in the possession of the plaintiff's attorney, who filed it in his absence, wherefore it is alleged that the judgment is void for want of jurisdiction, does not entitle him to have the judgment set aside; Harman v. Moore, 112–226.

316. Service on corporations. This section does not enter into the construction to be given to the statute of 1883 authorizing service of process on the auditor of state, relating to actions growing out of business such as an insurance company is authorized to transact after complying with the conditions imposed by the statute and which is forbidden until such compliance. The section relates to foreign corporations in general. It has no application to such corporations as are under special regulations; Rehm v. Germ. Ins. etc. Inst., 125-137.

318. Notice by publication. A decree to quiet title to real estate and to remove therefrom apparent liens may be rendered on notice by publication; Essig v. Lower, 120-246.

This section as it stood by the statute of 1881 as amended by the act of 1883 (S., 1883, p. 199) and prior to the amendment of 1885, was intended to provide for the publication of the notice in three successive issues of the newspaper in which it is published, and that three full weeks, and no more, shall elapse before the thirty days provided for shall begin to run. Four insertions in the newspaper are not required; Sec'y Co. v. Arbuckle, 123-519.

Where notice is given by publication, the judgment of trial court that the publication and the affidavit on which it is based are sufficient to give it jurisdiction is conclusive on all the parties, as against a collateral attack; Essig v. Lower, 120-245.

A judgment rendered on notice by publication before the notice has run the full period prescribed by the statute is erroneous, but it is not void and so is not subject to collateral attack; Essig v. Lower, 120-245.

ARTICLE 9-ACTIONS, WHEN DISMISSED.

333. Action dismissed, when. Prior to the year 1877 under the various sections of the Code, as it then existed, it was held that after a dismissal by the plaintiff of his action of replevin the court had no power to adjudge a return of the property to the defendant (Wiseman v. Lynn, 39-250). The legislature, at the session of 1877, conferred this power (S., 1877, p. 101). This statute of 1877 was not, however, carried forward into the revision of 1881, and there is no substantial difference between the present statute and the same ås found in the revision of 1852, except the provision in the present statute giving the defendant the privilege of giving bond and retaining possession of the property until the end of the litigation (§ 1270). It folfows that, after a dismissal in an action of replevin, by the plaintiff, the court may not render a judgment for the return of the property. In this there can be no difference whether the action is dismissed by plaintiff or by the court for want of prosecution the effect is the same; as where counsel for the plaintiff withdrew their appearance and defendants had the plaintiff called and defaulted. This was, in legal effect, a dismissal of the action by the court for want of prosecution, under the second clause of this section; Hulman v. Benighof, 125-483.

Where a court has made a general finding through inadvertence, a special finding having been requested, and on reminder has withdrawn such finding and announced that a special finding would be made, it is error of the court to overrule the defendant's motion to dismiss his cross complaint made before the special finding was prepared. The first subdivision of this section, "An action may be dismissed without prejudice, first, by the plaintiff at any time before the finding of the court is announced," applies to a cross complainant the same as to a plaintiff. The gen

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eral finding announced by the court was not conclusive as to the conclusion the court would reach when it came to find the facts specially, and when it was withdrawn the case was as if none had been announced, and the court was free to determine it without regard to the premature announcement; Mitchell v. Friedley, 126-549.

A dismissal of an action by the plaintiff therein after a cross complaint has been filed by the defendant does not "take" the "cross complaint out" - does not operate as a dismissal of the cross complaint; Watts v. Sweeney, 127–126.

338. Complaint — Paragraphs numbered. If a complaint state a cause of action, reciting the facts in such manner as to enable a person of common understanding to know what was intended, the supreme court would not feel justified in reversing a judgment for that which seems to be a defect of pleading; U. S. Mortg. Co. v. Henderson, III-28.

It is well settled that a complaint which shows the plaintiff entitled to some relief will repel a dumurrer; Rogers v. U. Cent. L. Ins. Co., III-344; Peden v. Mail, 118-559.

If a complaint shows a good cause of action as to any part of the plaintiff's demand it is good on demurrer; T. H. & I. RR. Co. v. M'Coy, 113–500.

Statements of fact in a complaint which are, in themselves, material and relevant to the cause of action can not be regarded as surplusage, although they overthrow the pleading; Knopf v. Morel, 111-573.

A supplemental complaint constitutes but a part of the original complaint; therefore, after the filing of the supplemental pleading, a demurrer thereto is unknown to our practice and will not lie; if such demurrer be filed it should be disregarded. So, where, after the filing of a supplemental complaint, the defendant demurs separately to it and the original complaint, neither demurrer should be entertained, and the complaint, as a whole, in the absence of further and other pleadings, will stand unchallenged and unanswered; Farris v. Jones, 112-500.

To present any question to the supreme court on the judgment of trial court in overruling motions to make a pleading more specific, or to strike out parts thereof, the motions, rulings and exceptions must be brought into the record by bill of exceptions or order of court; Board etc. v. Hill, 115-320.

339. Demurrer — Causes therefor. A demurrer to a complaint for the alleged insufficiency of the facts, questions both the sufficiency of the facts stated to constitute a cause of action, and the right of the particular plaintiff to maintain the suit; Farris v. Jones, 112-503.

A demurrer, to a complaint, assigning as cause, (a) 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. It has nothing to do with the fact that the complaint does not show a right of action in such plaintiff. Wherefore when it does not appear, on the face of the complaint, that the plaintiff is under any legal disability, it is not error to overrule a demurrer for this cause assigned. (b) "That there is not any proper party plaintiff in said cause" is not one of the causes of demurrer specified in this section as the only causes for which a demurrer may be sustained. A demurrer not alleging one of the statutory causes presents no question for the consideration of the court; Campbell v. Campbell, 121-179.

The rule is universal, as applied to courts of general jurisdiction, and especially in matters which proceed according to the course of the common law, that the facts which give the court jurisdiction of the subject of the action need not affirmatively appear on the face of the complaint. It follows, from the very language of this section, as well as from the general rules of the common law, that a demurrer for want of jurisdiction, either in respect of the person of the defendant or of the subject matter of the action, will only lie when the defect appears on the face of the complaint; Bass etc. Works v. Board etc., 115-240.

342. Pleading over Amendment - Terms. The statute governing proceedings supplementary to execution provides that the sufficiency of the original affidavit may be tested by demurrer. It does not, however, provide what action the court shall take, if it shall sustain such demurrer and hold such affidavit to be insufficient. In such case, it seems that, under the provisions of this section, it is competent for the court to allow plaintiff to amend his original affidavit; Hutchinson v. Trauerman,

112-25.

343. Objection by answer, when. The only way to raise the question of a misjoinder of causes of action is by demurrer. It is not error of a trial court to overrule

a motion to docket separately the different paragraphs of complaint, as independent actions, on the ground of misjoinder; Langsdale v. Wollen, 120-17.

Whenever it appears on the face of a complaint, which, otherwise, states a cause of action, that the suit has been commenced in the wrong county, or where the fact does not appear in the complaint but can be shown nevertheless, the proviso to this section applies. In such case objection must be taken either by demurrer, for want of jurisdiction, or by answer. When, however, a pleading omits an averment which is necessary to establish the plaintiff's right, or entitle him to the remedy or redress demanded, the omission or defect may be reached by a general demurrer; Pouder v. Tate, 111-150.

346. Demurrer to answer. The sufficiency of a paragraph of answer, when demurred to, must be determined upon the facts stated therein and not upon matters elsewhere appearing in the record; Amer. Ins. Co. v. Replogle, 114-7; M'Comas v. Haas, 93 Ind. 276; Fleetwood v. Brown, 109-567.

"That said second paragraph of answer does not state facts sufficient to constitute 'a defense' to the plaintiff's action herein." A demurrer in this form is sufficient in form to present the question of the sufficiency of the second paragraph of answer; the use of the words "a defense in the stead of the statutory phrase "6 a cause of defense" notwithstanding; Lewellen v. Crane, 113-291; see Bennett v. Shern, 11-324. A pleading which purports to answer the whole complaint and the matters therein pleaded, which amounts to a partial defense only, is vulnerable to demurrer; Roberts v. Abbott, 127-90; Harding v. Cowgar, 127-249.

When the general denial is pleaded the sustaining of a demurrer to another answer which sets up such facts, only, as are admissible in evidence under the general denial is not such error as is available on appeal; Harding v. Cowgar, 127-249.

A reply, pleaded with the general denial, which sets up only such facts as are admissible under the general denial, is demurrable. The subsequent withdrawal of the general denial will not render the ruling sustaining the demurrer available error; C., I., St. L. & C. Ry. Co. v. Smith, 127-464.

348. Set off. A claim arising out of a tort, for trespass or the wrongful conversion of property, can not be pleaded by way of set off against a cause of action founded upon or arising out of contract, nor does it follow that this rule is changed by reason of the fact that the defendant or injured party may, at his election, waive the tort and sue for and recover in indebitatus assumpsit, the value of property wrongfully destroyed or converted. This statute imperatively demands that the set off consist of "matter arising out of debt, duty or contracts; " Richey v. Bly, 115-233. Mutuality is essential to the validity of a set off. A defendant can not avail himself of a promissory note in which a third person has an interest as a set off against a claim asserted by the plaintiff. So, where a defendant offers a promissory note as a set off, the contract under which he claims to own it is admissible in evidence to show that he has not such an interest in the note as entitles him to use it as a set off; Proctor v. Cole, 120-111; Proctor v. Cole, 104-373; 115-15.

A promissory note being owned jointly by several persons, the maker can not set off against it a debt due from one of the owners. There is in such case no such mutuality as must exist when the right of set off prevails; Mitchell v. Friedley, 126-548. Action on a note executed by defendant to plaintiff's indorser. A note of the indorser which defendant had contracted to purchase from the payee, but which was not delivered until after the defendant had received notice of the indorsement to the plaintiff, is not available as a set off; Weader v. Nat'l Bk., 126–112.

349. Principal and surety - Set off. Under the provisions hereof, which allow a debt due the principal defendant from the plaintiff to be pleaded as a set off against a note sued on, the "principal defendant" means the person who, according to the relations existing between the makers of the note at the time of the commencement of the suit, sustains the character of principal debtor, or the one then primarily liable for the debt; Sefton v. Hargett, 113-594.

It is the general rule, both at law and in equity, that mutual demands only, existing in the same right, are proper matters of set off. The application of this rule prohibits the allowance of a set off of an individual debt due one of several defendants, who are jointly liable to the plaintiff, either on behalf of all the defendants, or of one to whom the debt is due; Rush v. Thompson, 112-158. Exceptions to this general rule are made: (1) Whenever it becomes necessary to do complete equity or to prevent irremediable injustice · as in cases of insolvency or of joint credit given on account of

an individual indebtedness, or where the joint debt is a mere security for the separate debt of the principal; or (2) when the action is upon a note or other contract against several defendants, any one of whom is principal and the other sureties therein. In cases falling within either of the classes above mentioned the set off will be allowed without regard to the mutuality of the debts, in order to prevent injustice, and in compliance with this section; Sefton v. Hargett, 113-593.

357. Reply-Demurrer hereto - Paragraphs numbered. A reply which does not respond to all the paragraphs of answer to which it is addressed is bad on demurrer; Bontes v. Miller, 112-587.

A demurrer to a reply in the words "the reply does not state facts sufficient to constitute a good reply to the defendant's answer, to which it is directed," is bad, for want of form, and its defects are such as to constitute a radical departure from the requirements of the statute; Peden v. Mail, 118-559.

Where any paragraph of answer contains new matter, the plaintiff may, in separate paragraphs of answer, set up any fact which supports the complaint and avoids the new matter in such paragraph of answer; Brown v. F. Nat. Bk., 115-580.

358. Pleadings subscribed. The failure of both a party and his attorney to subscribe the complaint constitutes only a formal or clerical defect, which is amendable in the nisi prius court. A motion to a complaint in that respect is entitled to precedence over a motion to strike out or reject the complaint for want of a proper signature. When, under a leave to amend, the complaint is subscribed, the defect is cured. A motion to quash the summons is not the appropriate way of reaching the defect caused by the absence of a signature to the complaint. When a complaint is not signed, or is not sworn to, when its verification in that manner is required, the proper method of raising a question on the defect is by motion to strike out or reject the pleading; Sims v. Dame, 113-129.

359. Interrogatories to parties. This section entitles a party to propound interrogatories to the adversary party relative to the matter in controversy. It requires such adverse party to answer. After the interrogatories have been answered, it is the proponent's right to introduce the answers in evidence, if he so desires. If the interrogatories were irrelevant the party to answer should move their rejection. If the party testifying gave irrelevant answers to the interrogatories the fault was his and he can not complain that they are introduced in evidence; C., I., St. L. & C. Ry. Co. v. Howard, 124-283.

362. When instrument or copy must be filed. In an action to secure the cancellation of a note and mortgage held by defendant, a complaint is not vulnerable to demurrer by reason that the note and mortgage are not filed or set out. These instruments are not the foundation of the action and are not within the rule established by this section. No recovery is sought on such note or mortgage; on the contrary, the object of the proceeding is to secure their legal destruction; Johnson v. Moore,

112-91.

Action on a judgment rendered in favor of the plaintiff, by a justice of the peace. An answer by judgment defendant alleging that there was not due service on defendant in the action in which the judgment was rendered, is defective and bad in that it does not aver that the record does not show due service. In such case the copy of the summons and indorsement thereon can not be considered in aid of the answer since, under this section, it is only written instruments which constitute the foundation of the defense that can properly be made exhibits to the answer, and it is only such exhibits as are properly parts of the answer that aid or strengthen it; Ind'plis & St. L. Ry. Co. v. Harmless, 124-26.

The filing of a copy of a judgment with a complaint in a proceeding to enjoin a sheriff's sale does not make it a part of the pleading; a judgment not being a "written instrument" within the meaning of this section; Dumbould v. Rowley, 113-357. In an action by a grantee, against his grantor, to recover damages for a breach of a covenant against incumbrances the deed is the foundation of the action. The original, or a copy thereof, must be filed with and made a part of the complaint. If it be not so filed the complaint is subject to demurrer, for failing to state facts sufficient to constitute a cause of action; Old v. Mohler, 122-595.

In an action by the assignee of a note and mortgage, to recover judgment on the note and foreclose the mortgage, it is not necessary to set out, in the complaint, a copy of the assignment. It is not the foundation of the action; Stanford v. B'way S. & L. Assoc., 122-424.

Where the description of land contained in an exhibit which is not properly a part of the complaint, not being the foundation of the action, differs from the description given in the complaint, the complaint will control; Bunting v. Gilmore, 124-118.

(1) Where a written instrument is filed as an exhibit to a complaint which avers that a written lease was executed and that a copy of it is filed, marked "exhibit A," and a copy of a lease so designated is set forth in the record on appeal, it is sufficient. (2) Where a written instrument is filed as an exhibit to one paragraph of a complaint and appropriately designated, it need not be set out with each paragraph. One exhibit suffices for all the paragraphs of one pleading; Ledbetter v. Davis, 121–

120.

Where it is averred in a pleading that a copy of the instrument declared on is filed therewith and made part thereof, and an instrument corresponding with the one described in the pleading is found in the transcript of the record, on appeal, in its appropriate place, the pleading will be held sufficient. Where, however, no copy of the instrument appears in the record, the averment that a copy was filed will not make the pleading good as against a demurrer; Old v. Mohler, 122–596.

An averment that a written instrument sued on is lost sufficiently excuses the failure to file such instrument, or a copy thereof, with the complaint, without an additional averment that diligent but unavailing search had been made for the instrument; Douthit v. Mohr, 116-483.

Where an instrument is not the foundation of an action it is, generally, censurable practice to encumber the record by making it an exhibit and, in such a case, the complaint acquires no strength from the instrument so pleaded. There are, however, cases where it is not improper to make an instrument an exhibit, although it is not, in a strict sense, the foundation of the action. As where, for example, it is necessary to give a construction to a will in order to determine the rights of the parties, it is proper to make the will an exhibit. An exhibit once properly referred to and filed, may be referred to, without repetition, in all the paragraphs of the pleading; Watt v. Pittman, 125-170.

363. Bill of particulars - Abstract of title. In an action on an insurance policy an allegation of complaint that the plaintiff, from the date of the risk until the destruction of the property by fire, "had an insurable interest as the owner thereof to its full value," is a sufficient averment of ownership, and plaintiff can not be required to furnish an abstract of his title under this section; Phoen. Ins. Co. v. Rowe, 117-203.

A bill of particulars being a proper and necessary exhibit filed with the complaint, the statements therein contained control the general allegations of the complaint; Briggs v. Fleming, 112-313. It does not control, however, where a variance exists only as to the caption of the bill of particulars; for the reason that such caption is neither an essential or material part of a bill of particulars. It is only in respect to those matters which are essentially a part of the bill, that the particular statement in amplification or specification of the complaint controls the general averments thereof A variance between the names of the person to whom goods sold are charged on the bill of particulars and in the complaint is an immaterial variance, to be disregarded if the bill is otherwise in substantial conformity to the requirements. The question is, is the bill calculated to mislead; Vannoy v. Klein, 122-420.

Action to recover the possession of land and to quiet title. Where the plaintiff filed an abstract of title sufficient to apprise defendant as to what deeds he relied on to prove his title asserted, there was no obligation to furnish any more definite information. A motion to require a more specific abstract of title and a bill of particulars was properly overruled. As a general rule a bill of particulars will not be ordered in actions for tort; Roberts v. Vornholt, 126-512.

365. Dilatory pleadings verified - Answer and issue in abatement. Under this section where an answer in abatement is pleaded with an answer in bar, it should be stricken out on motion. Neither the fact that the answer in abatement does not precede the answer in bar, nor that it was not verified, would authorize a court to sustain a demurrer to it for the want of sufficient facts, if it were, in fact, an answer in abatement. In this case, however, the answer was in absolute bar of the pending action inasmuch as it set out facts showing that the plaintiff had no interest in the subject matter of the action at the time of its commencement, and that some other person named was, at the time, the real party in interest in the suit; State, ex rel. v. Ruhlman, III-19.