In construing pleadings, written instru- An abstract of title voluntarily furnished ments filed therewith, pursuant to Rev. St. by plaintiff is not a part of the complaint, and 1881, § 362, must be looked to, and may often its insufficiency does not render the complaint control the same.-Blount v. Rick, 107 Ind. insufficient.-Hoover v. Weesner, 147 Ind. 510, 238, 5 N. E. 898, 8 N. E. 108. 45 N. E. 650, 46 N. E. 905. If an exhibit be unnecessary, it may, if filed with the complaint, be disregarded.Clark v. Trueblood, 44 N. E. 679, 16 Ind. App. 98. [tt] (App. 1897) Where the note on which the action is Where, in an action on a note, the answer avers that the consideration of the note was land conveyed by plaintiff to defendant, for which plaintiff's title failed, whereby defendant was evicted, and the deed to defendant is attached as an exhibit, and such deed shows that defendant assumed to pay a mort- brought is filed with the complaint, as requir gage on the land, a reply averring, by refered by Rev. St. 1894, § 365 (Rev. St. 1881, § ring to the exhibit, that defendant assumed the 3C2), it becomes a part thereof, and cures uncertainties therein.-Albany Furniture Co. v. Merchants' Nat. Bank, 46 N. E. 479, 17 Ind. App. 93. mortgage, is demurrable, as such exhibit is not part of the record.-Platt v. Brickley, 119 Ind. 333, 21 N. E. 906. [q] (Sup. 1890) A complaint alleging the execution of a chattel mortgage to plaintiffs, and the wrongfel conversion of the property covered thereby, being based, not on the mortgage, but on the conversion, the mortgage is not made a part of the complaint by filing a copy with it.-Ross r. Menefee, 125 Ind. 432, 25 N. E. 545. [qq] (Sup. 1891) [u] (Sup. 1898) A summons filed as an exhibit to a complaint, in an action to set aside a judgment for want of proper service, is not thereby made a part of the complaint, and cannot be considered in determining the sufficiency thereof.-Fitch v. Byall, 49 N. E. 455, 149 Ind. 554. [uu] (App. 1898) A lease filed as an exhibit with a com Instruments forming evidence of title are plaint to recover possession of the leased premnot the foundation of pleadings asserting ti- ises cannot be considered in determining the tle, and, if made exhibits, they will be disre- question as to the sufficiency of the complaint. garded, and only the allegations of the plead-Mann v. Barkley, 51 N. E. 946, 21 Ind. App. ing considered.-Smith v. Schweigerer, 28 N. E. 696, 129 Ind. 363. 152. [v] (App. 1898) A suit by a building and loan association to foreclose a mortgage, and to enforce a lien on shares of stock of the mortgagor given as collateral security to the mortgage, is not an St. 1894, § 365 (Horner's Rev. St. 1897, § 362), action on the certificate, within Burns' Rev. requiring the filing of a copy of a written instrument with any pleading founded thereon, and hence such certificate, when filed with the complaint, will not be considered in determining the sufficiency of the complaint.-Indiana Mut. Building & Loan Ass'n v. Plank, 52 N. E. 991, 152 Ind. 197. [w] (App. 1900) An action for the conversion of crops from rented premises not being founded on the lease, the lease, though filed with the complaint as an exhibit, as required by Horner's Rev. St. 1897, § 362 (Burns' Rev. St. 1894, § 365), when a pleading is founded on a written instrument, cannot be regarded as aiding it.-Allen v. Toner, 56 N. E. 250, 24 Ind. App. 121. [ww] (Sup. 1901) Instruments which are evidence of title are not the foundation of the action, and so cannot be made exhibits.-Id. FOR CASES FROM OTHER STATES, SEE 39 CENT. DIG. Plead. $$ 944, 946, 947. Where a taxpayer sued to enjoin the collection of taxes on the ground that he had paid all that he was liable for according to an assessment by the state board of tax commissioners, and the complaint showed that the action was not founded on the minutes of the board, the minutes, though filed as an exhibit, could not be considered in determining the suf- § 311. Necessity and effect of reference ficiency of the complaint as against a demurrer for want of facts.-First Nat. Bank v. Greger, 62 N. E. 21, 157 Ind. 479. [x] (Sup. 1903) While exhibits cannot supply the place of necessary allegations in a pleading, they may add to the certainty of averments with which they are properly connected, and thereby relieve the pleading from the defect of uncertainty.-Deane v. Indiana Macadam & Construction Co., 68 N. E. 686, 161 Ind. 371. [xx] (App. 1905) Exhibits filed with and made a part of a complaint, on foreclosure of a lien for the repair of a partition fence, showing the steps taken under the statute (Burns' Ann. St. 1901. § 6564; Acts 1897, p. 184, § 1), culminating in a valid lien, will be regarded as a part thereof.-Burck v. Davis, 73 N. E. 192, 35 Ind. App. 648. [y] (Sup. 1906) In an action to contest the validity of a probated will, and to probate in its stead a later will, the latter instrument was the foundation of plaintiff's cause of action, and hence, when attached to the complaint as an exhibit, was a part thereof.-Heaston v. Krieg, 77 N. E. 805, 167 Ind. 101, 119 Am. St. Rep. 475. [yy] (Sup. 1908) A suit for the dissolution of a partnership and an accounting, and for a sale of the partnership property, not being founded on the articles of partnership, even if they were filed with the complaint as an exhibit, they formed no part thereof, and could not be referred to either to sustain or overthrow the complaint or any part thereof.-Marshall v. Matson, 171 Ind. 238, 86 N. E. 339. [z] (App. 1908) in pleadings to exhibits annezed or filed. Aider by verdict or judgment, see post, § 433. In actions to enforce assessment for street improvements, see MUNICIPAL CORPORATIONS, § 567. In actions to enforce penalty for violation of municipal ordinance, see MUNICIPAL CORPORATIONS, § 633. [a] (Sup. 1863) Where a written instrument, which constitutes the cause of action, is filed with, and made a part of, the first paragraph of the complaint, and in the second paragraph thereof it it alleged to be filed with the latter, and is referred to as already on file with the former, the latter will be sufficient.-Peck v. Hensley, 21 Ind. 344. [b] (Sup. 1873) The complaint in an action to enjoin the collection of a tax for the construction of a gravel road alleged as ground of objection to the tax that the civil engineer appointed to estimate the cost of the road did not make any legal report of the cost of said road as is shown by a copy of the report filed by him, which is made part thereof, and marked "Exhibit A.” Held, that such pleading was unauthorized, and the court could not be required to refer to documents unnecessarily appended to supply allegations omitted in the pleading.-Sim v. Hurst, 44 Ind. 579. [c] (Sup. 1875) In an action to recover drainage assessments, when the complaint alleges that the petition for the drain stated that the lands to be drained were in the county, such allegation must be taken as true on demurrer, and the petition for the drain cannot be looked to, although it is A complaint against a railroad company for wrongfully expelling plaintiff, an employé, filed with the complaint.-Combs v. Etter, 49 Burns' Ann. St. 1901, § 365, provides that, when any pleading is founded on a written instrument, the original or a copy must be filed with the pleading, which, when not copied into the pleadings, shall be taken as a part of the record. A complaint alleged that defendant railroad company erected and maintained a hos pital in 1900, and prior thereto adopted certain "Rules," referred to as Exhibit A; that plainand while in its employment in 1903 injured his tiff in that year was employed by defendant, leg, and was taken to defendant's hospital; that plaintiff had paid a certain sum monthly while in defendant's employment for all medical services he should require while in defendant's service, and defendant undertook to receive plaintiff in its hospital for proper treatment, but its surgeon negligently treated him, and, after an examination which showed that plaintiff was not cured, discharged him from the hospital, causing him great expense for subsequent medical services, etc. Exhibit A recited that defendant's employés agreed to contribute a fund for the maintenance of hospitals, etc., for the use of sick and injured employés, and directed that a certain amount be taken from the pay of each employé, and provided for the amount of benefits to which employés were entitled, etc. Held that, giving the complaint the theory most clearly stated therein, and eliminating conclusions and recitals, the complaint was not founded on the rules referred to, and hence the sufficiency of the pleading must be determined without reference to the exhibit.-Wabash R. Co. v. Reynolds, 41 Ind. App. 678, 84 N. E. 992. FOR CASES FROM OTHER STATES, SEE 39 CENT. DIG. Plead. § 945; 1 CENT. See, also, 31 Cyc. pp. 558, 559. § 312. Variance between pleading and instrument annexed, filed, or referred to. Between pleading and oyer, see ante, § 306. In suits for partition, see PARTITION, § 62. [a] (Sup. 1849) In debt on a bond, if oyer of the bond is obtained, and it is set out in the defendant's plea, the bond so set out becomes a part of the declaration, and a variance between it and that previously described in the declaration cannot be taken advantage of.-State ex rel. Lock v. Geddes, 1 Ind. 577, Smith, 290. [b] In case of a variance between pleadings and exhibits referred to or made a part thereof, or on which the action or pleadings are founded, the exhibits explain or control the pleadings.--(Sup. 1869) Blossom v. Ball, 32 Ind. 115; (1874) Daily v. City of Columbus, 49 Ind. 169; (1878) Cotton v. State ex rel. Roberts, 64 Ind. 573; (1880) Hurlburt v. State ex rel. Ault, 71 Ind. 154; (1880) Liberty Tp. Drainage Ass'n v. Watkins, 72 Ind. 459; (1880) Glenn v. Porter, Id. 525; (1881) Lentz v. Martin, 75 Ind. 228; (1885) Avery v. Dougherty, 102 Ind. 443, 2 N. E. 123, 52 Am. Rep. 680; (1886) Blackburn v. Crowder, 108 Ind. 238, 9 N. E. 108; (1896) Dunlap v. Eden, 15 Ind. App. 575, 44 N. E. 560. Plaintiff, a widow, brought suit for breach of a contract which she alleged to have been made by herself and husband with defendant, by which, in consideration of certain property conveyed to him, defendant agreed to support plaintiff and her husband during the remainder of their lives. The contract was lost, and the copy set out in the complaint was signed only by plaintiff and defendant. Held, that the allegations in the complaint are controlled by the copy, and the complaint is sufficient on demurrer.-Blossom v. Ball, 32 Ind. 115. City of Elkhart v. Simonton, 71 Ind. 7: (1881) Watson Coal & Mining Co. v. Casteel, 73 Ind. 296; (1881) Parker v. Teas, 79 Ind. 235; (App. 1891) Furry v. O'Connor, 28 N. E. 103, 1 Ind. App. 573; (1894) Arcana Gas Co. v. Moore, 36 N. E. 46, 8 Ind. App. 482; (1896) Supreme Lodge K. of P. v. Edwards, 41 N. E 850, 15 Ind. App. 524; (Sup. 1899) Indiana Mut. Building, etc., Ass'n v. Plank, 52 N. E. 991, 152 Ind. 197; (1899) Same v. Condon, 52 N. E. 1127, 152 Ind. 702; (App. 1899) Board of Com'rs of Clark County v. Howell, 52 N. E. 769, 21 Ind. App. 495; (1902) Union Mut. Building & Loan Ass'n v. Coulter, 63 N. E. 1124, 28 Ind. App. 698. [g] In an action on a bond, where a variance exists between the description of the bond and the recitals of a copy filed with the complaint, the copy controls.-(Sup. 1880) Hurlburt v. State ex rel. Ault, 71 Ind. 154; (1881) Lentz v. Martin, 75 Ind. 228; (1886) Blackburn v. Crowder, 108 Ind. 238, 9 N. E. 108. [h] (Sup. 1880) Since it is not necessary, in an action on an injunction bond, to file a copy of the record of the injunction suit, when such copy is filed a variance between it and the complaint is immaterial.-Cress v. Hook, 73 Ind. 177. [i] (Sup. 1881) The averment in a complaint that a certain deed previously tendered by plaintiff conveyed all his title is not limited by a copy of the deed accompanying the pleading, if this is not a proper exhibit. Robards v. Marley, 80 Ind. 185. [j] (Sup. 1883) Written instruments are not proper parts of a pleading when they are merely collateral, and recitals in them cannot control averments in the body of the pleading.-Board of Com'rs of Madison County v. Burford, 93 Ind. 383. [k] (Sup. 1897) Where the allegations in a pleading vary from the provisions of the instrument on which it is founded, the provisions of such instrument control.-Harrison Building & Deposit Co. v. Lackey, 48 N. E. 254, 149 Ind. 10. [1] (App. 1900) In construing and giving effect to a written agreement, attached to and constituting the basis of a pleading, which also alleges the terms Where a complaint sets out as exhibits a of such agreement in detail, the writing itself, building contract and a bond to secure its perand not such allegations, must be considered.-formance, and the contract stipulated for the Naltner v. Tappey, 55 Ind. 107. erection of a building on or before April 1, 1897, and the bond was conditioned for the completion of a building on or before March 15, 1897, and the complaint did not allege any mistake or authorized change in the dates, the variance was fatal to the complaint.-Dougherty v. Wise, 58 N. E. 267, 25 Ind. App. 398. [m] (Sup. 1906) In an action on a written contract, where the allegations of the complaint vary from a written instrument attached as an exhibit, the latter controls.-Stewart v. Knight & Jillson Co., 166 Ind. 498, 76 N. È. 743. Demurrer to bill of particulars good in part, Roberts v. Vornholt, 26 N. E. 207, 126 Ind. 511. see post, § 204. Departure in bill of particulars filed with reply from that filed with complaint, see post, § 180. Effect of statute authorizing, on right to demur, see ante, § 196. Election between items, see post, § 369. Evidence admissible under, see post, § 385. Indefiniteness ground for demurrer, see ante, § 192. In justices' courts, see JUSTICES OF THE PEACE, $99. Motion to make more definite and certain, see post, § 367. Objections and waiver thereof, see post, § 424. Objections to evidence on ground of insufficiency of bill of particulars or variance between bill and pleading, see post, § 429. Permitting jury to take bill of particulars to jury room, see TRIAL, § 307. Record for purpose of review, see APPEAL AND ERROR, $518. Scope and extent of demurrer as affecting, see PLEADING, § 203. Sufficiency of filing, see post, § 335. [c] (Sup. 1890) In an action for injuries to the person of plaintiff, a motion for a bill of particulars is properly denied.-City of Plymouth v. Fields, 125 Ind. 323, 25 N. E. 346. FOR CASES FROM OTHER STATES, SEE 39 CENT. DIG. Plead. $$ 952, 953. § 315. Right to particulars in general. [a] (Sup. 1822) Where the declaration is general, the defendant may demand a bill of particulars.-Ianna v. Pegg, 1 Blackf. 181. FOR CASES FROM OTHER STATES, SEE 39 CENT. DIG. Plead. § 950; 33 CENT. See, also, 31 Cyc. pp. 567, 568. § 317. Particulars of cause of action. [a] (Sup. 1878) In an action on an account stated for work Want of bill as ground of demurrer, see ante, and labor done, it is not necessary to file a bill § 192. In particular actions or proceedings. See Bonds of county officers. COUNTIES, § 101. of particulars with the complaint.-Salem Gravel Road Co. v. Pennington, 62 Ind. 175. [b] (Sup. 1880) A complaint alleging that defendant is indebted to plaintiffs in a certain sum, being the difference in value between real estate conveyed by defendant to plaintiffs and a stock of goods sold by plaintiffs to defendant, which difference defendant agreed to pay, need not be accompa Enforcement of escheat. ESCHEAT, § 8. Of mechanic's lien. MECHANICS' LIENS, § nied by a bill of particulars.-Sharp v. Radebaugh, 70 Ind. 547. 271. |