Blackwell v. Pendergast

Miller, J. — This action was instituted by the appellee against the appellants upon a promissory note and for the foreclosure of a mortgage. The complaint avers that copies of the note and mortgage are made parts of the complaint, but no copy of either instrument appears in the record. The defendants demurred to the complaint, the demurrer was overruled and excepted to, and this ruling is properly assigned as error in this court. The statute, section 362, R. S. 1881, which requires a copy, or the original, of an instrument of writing upon which a pleading is founded to be filed with the pleading is imperative, and where a pleading avers that a copy is filed but no copy is found in the record, the pleading will not be good as against a demurrer. Old v. Mohler, 122 Ind. 594; Overly v. Tipton, 68 Ind. 410; Brown v. State, ex rel., 44 Ind. 222; Ashley v. Foreman, 85 Ind. 55; Douglass v. Keehn, 71 Ind. 97; Montgomery v. Gorrell, 51 Ind. 309; Seawright v. Coffman, 24 Ind. 414. The court erred in overruling the demurrer to the complaint. Judgment reversed.