Knarr v. Conaway

53 Ind. 120

Opinion

Downey, C. J.

This is a second appeal in the same case. The case when here before is reported in 42 Ind. 260. After the cause went down to the circuit' court, the application for a change of venue was renewed by the defendants, on the affidavit previously filed, and was again overruled. The defendants excepted, and filed their bill of exceptions. The plaintiff filed what is denominated a substituted complaint, to which the defendants were ruled to answer. This they failed to do, and the rule was closed. The cause was then submitted to the court for trial, and there was a finding and judgment for the plaintiff.

Two errors are assigned:

1. The refusal to grant a change of venue.

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

1. The improper refusal of a change of venue is a reason or ground for a new trial, and not a matter that can be assigned for error in the first instance. Buskirkis Prac. 224.

2. One objection urged to the substituted complaint is, that the parties are not named at the commencement of it. This was probably the omission of the clerk in copying the substituted complaint. At all events, the objection is not one that goes to the sufficiency of the facts to constitute a cause of action.

The only other objection to the substituted complaint is, that although it states that copies of the notes and mortgage are filed with it, they do not appear in the record. The appellant has not brought up a complete record. It does not profess, according to the clerk’s certificate, to contain all the papers filed in the cause. For this reason, this objection cannot be sustained. If the clerk’s certificate showed that the transcript was a complete one, the objection would be well taken.

The judgment is affirmed, with costs.

Petition for a rehearing overruled.