Armstrong v. Presslor

O’Malley, C. J. The appellant was a defendant in an action on notes and to foreclose a mortgage. She answered in one pleading paragraph containing a great number of rhetorical paragraphs. The appellee filed *293 a motion to strike out the answer -.on the ground that it did not conform to the code or the rules of this Supreme Court of Indiana. The court sustained the motion to strike out the:answer. Later,- on motion of appellant, a.change of venue-was granted and the matter was sent to the Fountain Circuit Court. In that court, the plaintiff secured a rule to answer against thé defendant, and the defendant requested and was' granted an extension of time' within which to file an answer. Eighteen months after such" rule, the cause was set for trial .and defendant’s attorneys appeared in court on the day of trial. 'No answer had been- filed but the court proceeded to hear evidence and at the conclusion of the trial rendered judgment for the plaintiff. Within time, the appellant filed a motion for a new trial which was overruled. An appeal was then taken to -the Appellate Court, where the cause was reversed-. The appellee then petitioned for a transfer to this court and it -was granted. Under propositions and authorities it is asserted that: '■ 1. The court erred in sustaining the motion to, strike out appellant’s answer. 2. The court erred in overruling the motion for, a new trial for the reason that the decision of the court is not sustained by the evidence. Each of the above are followed by points that pertain thereto, all of which are treated or eliminated in that part' of this opinion which follows. In Gavit’s Indiana Pleading and Practice, Vol. 1, p. 6.7, .§ 20, it is stated that Rule 1-2 of this court does not provide a penalty for failure of the pleader to comply therewith.. It further states that a motion to require the pleader to comply with the rule by separating, and numbering a pleading in separate paragraphs would raise the question, and that failure' to comply bn order *294 to separate would justify a default. Rule 1-3 is likewise silent as to penalty for failure to comply, but in § 21 (m), p. 91 of Gavit, supra, it is stated that the question could be raised by demurrer or motion, and failure to comply with an order to paragraph would undoubtedly lead to the penalty of a default against the defendant. In the instant case no default was taken. The court treated the sustaining of the motion to strike as if it were a motion to separate. The appellant failed to answer as ordered by the court even after she was given additional time. If the rule is to be enforced, some penalty should be applied, but we do not now decide whether that could be a default or something less drastic. While the motion to separate was the proper pleading, the record discloses that the conduct . of the defendant and her attorneys during the pendency of the action obviated any possible claim of harm because of the court’s ruling on the motion. The court set the matter for trial and the attorneys for the defendant were present during the course thereof. • The case of Butler v. Wolf Sussman, Inc. (1943), 221 Ind. 47, 46 N. E. (2d) 243, 145 A. L. R. 740, was an action to replevin a diamond ring. The answer was in general denial and not in conformity with Rule 1-3 of this court. This court determined in that case that the plaintiff was entitled to judgment on the pleadings, but that such right was waived by going to. trial on the merits. In Parscouta v. State, ex rel. (1905), 165 Ind. 484, 485, 75 N. E. 970, an action for mandate, this court discussed the rights of a defendant who failed to file an answer and in that opinion there may be found the following statement: *295 “It is now settled under the code that where a defendant fails to file an answer and no default is taken against him, but he goes to trial, he can not on appeal to the Supreme Court complain that no issue was formed.” In 3 Am. Jur., p. 571, § 1021, it is held that the striking out of a pleading is not reversible error unless it is prejudicial. In 5 C. J. S., pp. 173, 174, § 1501, it is said that: “An appellant . . . will not be permitted to take advantage of errors which he himself committed, or invited or induced the trial court to commit, or which were the natural consequences of his own neglect or misconduct.” If no substantial right of the pleader has been affected, error in ruling on a motion to strike does not constitute grounds for reversal. 5 C. J. S., pp. 875, 876, § 1689. In the above authority it is stated that: “Error in sustaining a motion to strike is usually regarded as harmless where the party otherwise has the benefit of the matter set up in his stricken pleading, or has had ample opportunity to file another pleading to replace the one stricken,.....” In Wohadlo v. Fary (1943), 221 Ind. 219, 222, 46 N. E. (2d) 489, 490, this court had before it a question raised below on a petition to review. The court sustained a motion to strike out an amended complaint, and the plaintiff then refused to plead further and suffered judgment to be rendered against him. On appeal this court used the following language: “Trial courts are liberal in permitting amendments and we have no doubt that if appellants had offered for filing an amended complaint stating other facts and predicated upon a new and correct theory the court would have permitted its filing. *296 Instead they chose to stand upon the ruling from which it may be assumed that they thought they had made the bést case the facts warranted. Under these circumstances they were not harmed by the-alleged error.” It may be readily seen that' in the instant case the appellant waá invited to file an answer under the rules when the court ruled that she answer. It may likewise be readily reasoned that she intended to file, an answer .in conformity with the rules when her' attorneys secured' additional time to ■ file answer. It is plain to us that the lower court treated the motion to strike as if it were a motion to separate into proper pleading paragraphs and we cannot understand why an answer was not filed. Certainly the answer filed in the first instance did not comply with the rules of pleading in use in our courts, and the lower court could and should have required that the pleadings be so drawn as to conform thereto. Since the proper motion, if used by the plaintiff below, would have afforded no greater right or opportunity to plead a defense than the opportunity and request which were readily granted, we feel that it cannot now be asserted that the action of the court harmed or prejudiced the rights of the appellant. See Western Machine Works v. Edwards M. & T. Corp. (1945), 223 Ind. 655, 63 N. E. (2d) 535. It is claimed that there was no evidence to support the decision, that no witnesses were sworn and that the decision granted a greater amount than that requested in the complain! We have examined the evidence and while it is not voluminous, it is sufficient to support the decision of the court. The record shows witnesses were sworn, evidence was heard and the attorneys for the appellant raised no objéction *297 to anything done at the trial. It is now too late to claim that evidence was improperly admitted. In the case of Cleveland, etc., R. Co. v. Woodbury Glass Co. (1923), 80 Ind. App. 298, 312, 120 N. E. 426, 431, the Appellate Court, while considering the question of granting an amount in excess of that demanded in the prayer of the complaint used the following language: “In such a case the demand in the pleading will be deemed to have been amended to meet the amount of damages proved and found.” In the instant case there was evidence from which the court could have found the amount due to be in excess of the demand and equal to the amount awarded. We consider the amount of the demand amended to conform to the evidence. Finding no reversible error the judgment is affirmed. Emmert, J., concurs in the result. Gilkison, J., dissents with opinion. Note.—Reported in 73 N. E. (2d) 751.