State ex rel. Haywood v. Earl

Olds, J. This was an action to recover a penalty, under section 6339, R. S. 1881. Appellant filed interrogatories with his complaint, which, on motion of the appellee, were struck out. Appellee filed a demurrer to the complaint, which was overruled and exceptions reserved, and the appellee then filed a motion to make the complaint more specific, which motion was sustained in part and overruled in part, and [390] the record shows that the appellant amended his complaint,, in accordance with the ruling and order of court, hut the' amended complaint is not in the record. The record shows-that a demurrer was filed to the amended complaint, and was overruled. Filed January 11, 1893. Afterwards the appellee filed an answer in one paragraph to the complaint. The answer was a denial of the-principal allegations of the complaint, and in confession and avoidance of the other allegations, to which a demurrer was overruled, and the appellant excepted to the ruling, and failing to plead further,'the court rendered judgment on the demurrer in favor of the appellee. The Attorney-G-eneral files a brief on behalf of the appellant, in which he concedes, and we think correctly so, that the question sought to he raised is not presented by the record, and that the answer is sufficient to withstand a-demurrer, even if the record presented the question. To present any question arising on the pleading, it is-necessary that the complaint, upon which the cause was-determined, should be in the record. The amended complaint took the place of the original complaint, and should have been set out in the record. Elliott’s Appellate Procedure, sections 198 and 595; McCardle v. McGinley, 86 Ind. 538; Seager v. Aughe, 97 Ind. 285; Sumner v. Goings, 74 Ind. 293; Heizer v. Kelly, 73 Ind. 582; Burkam v. McElfresh, 88 Ind. 223; Chisham v. Way, 73 Ind. 362; Collins v. U. S. Express Co., 27 Ind. 11; Berghoff v. McDonald, 87 Ind. 549; State, ex rel., v. Hay, 88 Ind 274; Conley v. Dibber, 91 Ind. 413; Kennedy v. Anderson, 98 Ind. 151. Judgment affirmed.