Rairden v. Winstandley

Elliott, J. — The second paragraph of the appellee’s complaint counts upon a promissory note alleged to have been executed by the appellants, but the note is not identified nor in any way referred to as forming a part of the pleading. It is not stated that a copy is filed with the complaint, nor is any reference made to it except to give a general description of its legal tenor and effect. As it is not averred that a copy of the note is filed with the pleading, and as it is not set out therein, it must be held that the court erred in overruling the appellants’ demurrer. This is not a case where the pleader can invoke aid from the rule 'that a verdict will cure a defect, for the reason that the objection was presented by demurrer prior to the verdict. Price v. Grand Rapids, etc., R. R. Co., 13 Ind. 58; Hiatt v. Goblt, 18 Ind. 494; Stafford v. Davidson, 47 Ind. 319; Cook v. White, 47 Ind. 104; Sinker, Davis & Co. v. Fletcher, 61 Ind. 276; Williams v. Osbon, 75 Ind. 280; Rogers v. State, ex rel., 78 Ind. 329. Judgment reversed.