Opinion
No. 17,244.
Filed January 4, 1945. Rehearing denied March 1, 1945. Transfer denied April 10, 1945.
1. JUDGMENT — Review — Bill of Exceptions — Failure to File in Time — Effect. — In an action to review a judgment, a bill of exceptions filed after the time granted for filing it, no extension of time having been prayed for or granted, was not a part of the record in the original cause. p. 532.
2. JUDGMENT — Review — Bill of Exceptions — Filing as Exhibit Not Permitted. — In an action to review a judgment, a bill of exceptions, even if it be a part of the record, is not such a written instrument as can be filed as an exhibit. p. 532.
3. JUDGMENT — Review — Errors Presented by Motion for New Trial in Original Cause Not Properly Presented. — In an action to review a judgment, asserted errors presented by the motion for new trial filed in the original cause were unavailable where the specifications therein were addressed to the sufficiency of the evidence and other matters, all of which would have required a review of the evidence given in the trial of the original cause, of which there was no record because the bill of exceptions was not timely filed. p. 532.
4. PLEADING — Complaint — Inconsistency and Repugnancy — Motion to Separate or Make More Specific Proper Remedies. — If a complaint is so inconsistent, uncertain or repugnant as to mislead defendants, their remedy is by way of motion to separate the causes or to make the complaint more specific, and a motion to require an election of remedies is unavailing. p. 533.
5. FRAUD — Actions — Complaint — Essentials Adequately Stated. — A complaint declaring upon fraud adequately set out all the essentials thereof where it alleged that the representations made by defendants were related to material facts, were false and made with the intention to deceive, and that plaintiff was ignorant of their falsity but believed them and had a right to rely thereon and did so to his injury. p. 533.
6. JUDGMENT — Review — Newly-Discovered Matter — Evidence Relied on in Defense of Action Not Constituting. — Subsequently discovered receipts, documents and other evidence of facts which were relied upon by defendants in defense of an action for fraud, and which were set up by pleadings filed therein and constituted a defense which was known to exist, did not constitute new matter within the meaning of the statute authorizing review of judgments. p. 534.
7. JUDGMENT — Review — Perjury of Witness Not Ground for Review. — A judgment will not be reviewed because a witness, at the solicitation of the prevailing party, committed perjury at the trial. p. 534.
From the Porter Superior Court, Mark B. Rockwell, Judge.
Action by Victor Yuknavich and another against Constant Yuknavich, sometimes known as Gust Ukniewicz, to review a judgment for defendant against plaintiffs. From a judgment for defendant, plaintiffs appealed.
Affirmed. By the court in banc.
Conroy Glendening, of Hammond, Justin Waitkus, of Gary, for appellants.
Anderson, Hicks Anderson, of Gary, for appellee.
Appellants filed, in the Porter Superior Court, their complaint to review a former judgment of that court. The complaint was in two paragraphs, the first to review for errors of law, the second, for material new matter discovered since the rendition of said judgment. To each paragraph of this complaint appellee addressed demurrers for want of facts which, being sustained by the court below, the appellants refused to plead further and suffered adverse judgment.
Error assigned is the ruling of the court below on the demurrers.
There is attached to the complaint to review and identified as Exhibit A what purports to be a bill of exceptions containing the evidence given in the original cause. However, it 1, 2. appears that on October 9, 1942, appellants were granted 60 days within which to prepare and file their bill of exceptions and that thereafter no extension of time was prayed for or granted and that the purported bill of exceptions was not filed until March 31, 1943. It is not, therefore, a part of the record of the original cause. Mackey v. Pachter, Rec. (1938), 105 Ind. App. 328, 14 N.E.2d 739. (It should be noted that these proceedings occurred prior to the adoption of Rule 2-3 Sup. Ct.) Moreover, it has been held that a bill of exceptions, even if part of the record, is not such a written instrument as can be filed as an exhibit. Watson's Works Practice and Forms Vol. 1, § 388, p. 259.
The complaint to review, therefore, presented no errors which might have been made apparent by a bill of exceptions. Asserted errors presented by appellants' motion for a new trial 3. filed in the original cause were unavailable for the reason that the specifications of the motion were addressed to the sufficiency of the evidence and other matters, all of which would have required a review of the evidence given in the trial of the original cause of which there was no record. See Graves et al. v. State ex rel. (1893), 136 Ind. 406, 410, 36 N.E. 275.
Other questions presented by the first paragraph of complaint and not dependent upon a bill of exceptions for review are (1) the sufficiency of the complaint in the original action, 4. (2) the action of the court in permitting the filing of a second paragraph of complaint, (3) failure of the court on appellants' motion to require the plaintiff to elect the theory upon which he would proceed to trial. The two latter questions are raised upon an assertion by appellants that the two paragraphs express separate and distinct theories which are inconsistent and that paragraph 2 embraces within itself two inconsistent theories. The questions were not properly saved by appellants in the original trial. If the complaint was so inconsistent, uncertain or repugnant as to mislead appellants, their remedy was by way of motion to separate the causes or to make the complaint more specific. Chicago, etc., R. Co. v. Lawrence (1907), 169 Ind. 319, 79 N.E. 363, 82 N.E. 768. The motion to require election was of no avail. Snyder v. Snyder (1865), 25 Ind. 399; McDonald v. McDonald (1895), 142 Ind. 55, 41 N.E. 336.
The complaint in the original cause although subject to some criticism, is sufficient. It declares upon fraud and adequately sets out all the essentials thereof, i.e., the 5. representations made by appellants and that they related to material facts, that they were false and were made with intention to deceive, that the appellee was ignorant of the falsity of such representations but believed them and had a right to rely thereon and did so to his injury.
The first paragraph of appellants' complaint to review, therefore, was insufficient and demurrer thereto was properly sustained.
The second paragraph thereof sets out certain so-called material new matter which is, in reality, merely newly discovered evidence of facts which were relied upon by appellants in 6. defense of the original action. Such facts were set up by appellants in pleadings filed in the original cause and constituted a defense which was known to exist (and was employed) in the former action. The asserted "new matter" consists merely of subsequently discovered receipts, documents and other evidence of these facts. While it may have supplied sufficient grounds for a new trial, upon proper and timely motion, as newly discovered evidence, it is not material new matter as contemplated by the statute authorizing review of judgments. Hall v. Palmer (1862), 18 Ind. 5; Jones v. City of Tipton (1895), 142 Ind. 643, 646, 42 N.E. 221; Seisler v. Smith (1901), 27 Ind. App. 607, 610, 60 N.E. 724; Barnes v. Dewey (1877), 58 Ind. 418, 424; Webster v. Maiden (1872), 41 Ind. 124, 130.
By this paragraph of complaint appellants further averred the discovery of the perjury of a witness, at the solicitation of appellee, in the trial of the original cause. A judgment 7. will not be reviewed because a witness, at the solicitation of the prevailing party, committed perjury at the trial. Walker v. State ex rel. (1909), 43 Ind. App. 605, 86 N.E. 502.
The sustaining of appellee's demurrer to the second paragraph of complaint to review was not error.
Judgment affirmed.
NOTE. — Reported in 58 N.E.2d 447.