Whitworth v. Malcomb

82 Ind. 454

• Court: Indiana Supreme Court
• Decided: November 15, 1881
• Docket: No. 8109
• Status: Published

Opinion

Woods, J.

The appellants have assigned for error that the complaint does not contain facts sufficient to constitute a •cause of action.

Opinion filed at the November term, 1881. Petition for a rehearing overruled at the May term, 1882.

The objection made to the complaint is stated in the brief ;as follows: “ The complaint avers that ' defendants executed their note which is filed herewith.’ What purports to be the note itself is placed in the complaint, but there is no filing mark upon it, and there is nothing to show that it ever was filed, and no copy of the same is set out in the body of the complaint.” For support of this objection we are referred to Conwell v. Clifford, 45 Ind. 392, and Stafford v. Davidson, 47 Ind. 319. The cases, however, are not in point. In the first the copy of the writing did not appear in the transcript, and it was held not sufficient to state that the writing was filed; “ it must be filed.” And in the other case it was held that a mere filing of the instrument without a reference to it in the pleading was not sufficient.

In this case the complaint contains a sufficient reference to the note. Carper v. Kitt, 71 Ind. 24. The record shows the filing of the complaint, and the transcript of the complaint is followed by a copy of the note.

There may be a filing without a file-mark, which is only evidence of the filing. If the note was attached to the complaint, the filing of the complaint was necessarily a filing of the note.

Judgment affirmed, with costs.