Long v. Town of Brookston

79 Ind. 183

• Court: Indiana Supreme Court
• Decided: November 15, 1881
• Docket: No. 8485
• Status: Published

Opinion

Woods, J.

— The appellee sued the appellant before a justice of the peace, to recover a penalty for the failure of the appellant to comply with an ordinance of the town. On appeal to the circuit court the appellant moved the court to dismiss the action, whereupon the appellee interposed a motion ■for leave to amend, and, upon leave granted, filed an amended complaint, and the court then overruled the motion to dismiss. But, as there is no bill of exceptions in the record to ¡show the motion, or the ground on which it was predicated, or the ruling of the court and the appellant’s exception, no question is presented upon this part of the record.

The next error complained of is the overruling of the demurrer to the complaint; but, as the demurrer is not in the record, the ruling can not be considered.

The motion in arrest, according to the record before us, ¡should have been sustained. The amended complaint, as set out in the transcript, which seems to be properly certified, consists entirely of what appears to be the first section of an ordinance of the town, accompanied with no averments whatever, tending to show a cause of action against the appellant.

The original complaint was defective, but, even if good, it was abandoned, and superseded by the filing of an amended complaint, which is insufficient to support a judgment of any kind in favor of the appellee.

The judgment is therefore reversed, with costs, and with instructions to sustain the motion in arrest.