ings thereon. [a] (Sup. 1883) for medical treatment and nursing, the court's § 323. Application for bill, and proceedrefusal to compel plaintiff to state the items of such expenses is not cause for reversal, when, at the trial, plaintiff abandons that part of his case.-Romona Oölitic Stone Co. v. Tate, 12 Ind. App. 57, 37 N. E. 1065, 39 N. E. 529. FOR CASES FROM OTHER STATES, A bill of particulars will not be ordered on a motion to make a pleading more specific.Louisville, N. A. & C. Ry. Co. v. Henly, 88 Ind. 535. FOR CASES FROM OTHER STATES, SEE 39 CENT. DIG. Plead. §§ 976-979. § 324. Form and requisites of bill. In a suit by an attorney for services rendered defendants, a bill of particulars, filed with the complaint, is sufficient where, after the usual formal recital that defendants are indebted to plaintiff, it states: "To legal services rendered in the October term of the Tippecanoe circuit court, in the case of themselves against John Doffin and others, to set aside a fraudulent mortgage, two hundred dollars ($200)."-Pierce v. Wilson, 48 Ind. 298. [b] (Sup. 1879) A bill of particulars in an action to recover for goods sold, contained an account for merchandise denominated "paper patterns," with proper dates and amounts, but did not show the number of patterns or any specific description thereof. Held, that it sufficiently apprised the defendants of the nature and amount of the claim sued for.-Leib v. Butterick, 68 Ind. 199. [c] (Sup. 1882) A complaint alleging that defendants are SEE 39 CENT. DIG. Plead. §§ 954-962; 33 indebted to plaintiff $400 "for money had and CENT. DIG. Mal. Pros. § 102. See, also, 31 Cyc. pp. 572–579. received a bill of particulars of which is filed," etc., and signed "D. W. plff. atty.," immediately followed by a statement headed "Bill of Par § 319. Particulars of set-off or counter- ticulars," showing the defendants by name to claim. [a] (Sup. 1880) In an action on notes against one who claimed to be a surety by an indorser who had raid the notes, an answer alleging that plaintiff had been fully paid by moneys which he had received from the estate of the maker, rents from a mill belonging to said estate, and other sources, but not alleging that there was any agreement between plaintiff and the administrator of the estate that plaintiff's alleged indebtedness to the estate should be applied in satisfaction of the notes, and not accompanied by any bill of particulars, could not be upheld as a set-off. Johnson v. Breedlove, 72 Ind. 368. the plaintiff by name "Dr. $400, in money, A. D. 1877," and signed by the plaintiff, is not subject to the objections that such complaint is not signed by plaintiff or by any one acting as his attorney, and that the bill of particulars following the complaint is not marked as an exhibit thereto, and is not sufficiently specific.Lee v. Basey, 85 Ind. 543. [d] (Sup. 1884) A complaint for goods sold and delivered and for work and labor was followed in the transcript by a bill of particulars prefaced “bill of particulars of the items of the accompanying complaint." Held sufficient to show that the items of the account in the bill of particulars were between the parties to the suit.-Hartlep v. Cole, 94 Ind. 513. FOR CASES FROM OTHER STATES. A complaint alleged that defendant sold plaintiffs some wheat, to be of a certain grade, at a certain price per bushel, with a provision SEE 39 CENT. DIG. Plead. §§ 980-983, 985. that if on arrival it should not be found by the See, also, 31 Cyc. pp. 587, 588. 326. Further or additional bill. [a] (Sup. 1886) Where an indebtedness sued for is not evidenced by a written instrument, and is so particularized or described in the complaint as to indicate with certainty the items and dates of the account on which a recovery is sought, an additional bill of particulars would serve no useful purpose.-Wagoner v. Wilson, 8 N. E. 925, 108 Ind. 210. state inspector to be of that grade, then it should be sold by plaintiffs at market difference on day received, and accounted for accordingly to defendant; that defendant drew on plaintiffs for the amount of the wheat, and plaintiffs paid therefor before its arrival; that on arrival it was rated by the inspector as of a much poorer grade than called for; that plaintiffs thereupon received it as of the grade so rated, and accounted for it to defendant at the highest market price on the day of delivery to them, "as was agreed by plaintiffs and defendant." A bill of particulars annexed to and made part of the complaint showed (1) the amount paid defendant; (2) the amount realized from the sale of said wheat; and (3) the balance claimed by plaintiffs to be owing them on account of overpayment to defendant. of Held, on a motion in arrest of judgment for plaintiffs, that the complaint was not open to the objection that it appeared therefrom that plaintiffs, instead of selling the wheat as provided by the contract, kept it themselves.-Green v. McIntire, 2 Ind. App. 278, 28 N. E. 555. A bill of particulars filed with a complaint is part thereof.-Noble v. Burton, 38 Ind. 206. [b] (Sup. 1882) Where a paragraph of a complaint is in the nature of a common count in assumpsit, and is aided by a bill of particulars which supplies the omissions complained of, it is sufficient on demurrer.-Oliver v. Gorham, 85 Ind. 598. [c] (Sup. 1887) A complaint alleged that "the said defendant is indebted to the plaintiff in the sum of *. with interest thereon from the date of the several items of account, the bill of particulars of which is filed herewith, and hereby made a part of the complaint, marked 'Exhibit A.'" The complaint was upon an account stated against the defendant to the plaintiff, “Dr.," and the items were stated after the following manner. "To foreclosing mortgage v. J. M. Hemel;" "To general attention to your business." Held that, considering the complaint and the bill of particulars together, the inference was that the indebtedness charged was for services rendered in foreclosing mortgages, and for general attention to the defendant's business, and the complaint was sufficient under Rev. St. 1881, §§ 338, 376, 658, by which it is only required that the facts should be so stated as to enable a person of common understanding to know what is intended.-United States Mortgage Co. v. Henderson, 111 Ind. 24, 12 N. E. 88. [d] (App. 1891) [f] (App. 1894) A complaint failing to state that the debt is due is not made sufficient by filing therewith a bill of particulars containing the abbreviation "Dr.," as such abbreviation does not indicate a matured indebtedness.-Jaqua v. Shewalter, 10 Ind. App. 234, 36 N. E. 173, 37 N. E. 1072. [g] (App. 1910) The authority conferred by statute to order abstracts of title to be furnished by a party in connection with his claim does not make such abstracts, when furnished, a part of the pleading. O'Mara v. McCarthy, 90 N. E. 330. [h] (App. 1910) To cure defects in a pleading, reference may be made to the bill of particulars.-WulchnerStewart Music Co. v. Helft, 90 N. E. 1033. A complaint alleging generally that defendant is indebted to plaintiff for commission as salesman, and for expense money advanced for and in behalf of defendant, which is insufficient to inform defendant of the nature of the claim against him, is not cured by a bill of particulars which set out 56 items similar to one as follows: "Vose piano, sold Peter Denkleman, July 11th, '05, Terre Haute, $5.00."-Id. FOR CASES FROM OTHER STATES, SEE 39 CENT. DIG. Plead. §§ 993, 994. bill. A recital in the superscription to a bill of particulars, filed with a paragraph in a complaint for goods sold and delivered, of the goods as "sold to R. F. M., suc'r to S. F.," does not § 328. Variance between pleading and control an averment in the complaint that they were sold to both of such persons, who are defendants, but such statement is surplusage.Furry v. O'Connor, 1 Ind. App. 573, 28 N. E. 103. Reply and bill filed with complaint, see post, § 180. Variance between pleading and copy of account, see post, § 330. In an action by a court stenographer, an [c] The rule that, where the contract or a account, filed as an exhibit to her complaint, copy thereof is filed with and made part of the for a certain number of folios of the transcript pleading as an exhibit, the contents of the conof a record, at 10 cents per folio, is not an actract control rather than any averments of the count for goods sold and delivered, but for serv、 complaint which are in conflict with the same, ices rendered; and hence there is no variance has no application to a bill of particulars.-between such account and the complaint, which (App. 1891) Furry v. O'Connor, 28 N. E. 103, 1 Ind. App. 573; (1895) Chapman v. Elgin, J. & E. Ry. Co., 39 N. E. 289, 11 Ind. App. 632; (Sup. 1906) Stewart v. Knight & Jilson Co., 166 Ind. 498, 76 N. E. 743. [d] (App. 1892) The fact that goods sold on an account are alleged, in an action therefor, to have been sold a certain person, while the caption of the bill of particulars, filed as an exhibit, states the account to have been with another, as agent for the said person, does not constitute such a variance as to render the complaint obnoxious to a demurrer; but the caption may be rejected as surplusage.-Wellington v. Howard, 5 Ind. App. 539, 31 N. E. 852. alleges that defendant is indebted to plaintiff for stenographic and transcribing services rendered at his request.-Arcana Gas Co. v. Moore, 8 Ind. App. 482, 36 N. E. 46. A claim by the owner of land adjoining a railroad right of way, shown by an itemized statement presented to the railroad company, under the statute providing that, if the company neglects for 60 days "to pay said account," the owner may bring suit and recover the reasonable value of a fence erected by him along the right of way, is not an account within Burns' Ann. St. 1901, § 365, providing that when a pleading is founded on an account the original or a copy must be filed with the pleading. Vandalia R. Co. v. Stephens, 39 Ind. App. 11, 78 N. E. 1055. FOR CASES FROM OTHER STATES, SEE 39 CENT. DIG. Plead. §§ 996-1002. X. FILING, SERVICE, AND WITH- Filing as affecting computation of period of limitations, see LIMITATION OF ACTIONS, § 118. In actions on bills or notes, see BILLS AND 'NOTES, $488. In equity, see EQUITY, § 321. Presumptions on appeal as to filing, see APPEAL Review of discretion of trial court, see APPEAL Service of pleading with process, see PROCESS, $331. Purpose of filing or service in general. [a] (App. 1902) The fact that the paragraphs of an answer are insufficient does not justify the court in refusing, of its own motion, to permit the answer to be filed, and thereby deny defendant the opportunity to take issue on the complaint.-Anthony v. Masters, 62 N. E. 505, 28 Ind. App. 239. FOR CASES FROM OTHER STATES, § 332. Necessity for filing or service. [a] (Sup. 1882) Where a pleading is amended in order to be made more specific or otherwise, there should be a refiling of it as amended with a distinct docket entry of the fact.-Eshelman v. Snyder, 82 Ind. 498. FOR CASES FROM OTHER STATES, SEE 39 CENT. DIG. Plead. §§ 1003-1010. $333. Time for filing or service. Cross-bill in equity, see EQUITY, § 200. Plea or answer, see ante, § 85. [b] (Sup. 1890) When the clerk fails to make an entry on the order book of the filing of an answer, and the paper is identified by the file mark of the clerk, the omission can be supplied on an application for a nunc pro tunc entry.-Security Co. of Hartford v. Arbuckle, 123 Ind. 518, 24 N. E. 329. A trial court, having judicial knowledge of the filing of a separate answer in an action when it discovers that the clerk of the court has omitted to make a record thereof, may, on its own motion, order a nunc pro tunc entry. -Id. Plea or answer of set-off or counterclaim, see App. 361. ante, § 140. Replication or reply and subsequent pleadings, FOR CASES FROM OTHER STATES, see ante, § 172. [a] (Sup. 1838) SEE 39 CENT. DIG. Plead. § 1025. ings. A party cannot be required to perfect his § 338. Acceptance and return of pleadpleading by a certain day in vacation, but a day during the term at which the cause is called, or during the subsequent term, may be set for that purpose.-Runnion v. Crane, 4 Blackf. 466. FOR CASES FROM OTHER STATES, In replevin, see REPLEVIN, § 57. FOR CASES FROM OTHER STATES, SEE 39 CENT. DIG. Plead. §§ 1022, 1023. SEE 39 CENT. DIG. Plead. §§ 1011, 1012; 22 § 339. Withdrawal or abandonment of CENT. DIG. Ex. & Ad. § 1849. pleadings. Abandonment of demurrer, see ante, § 212. Competency of abandoned pleadings as admissions, see EVIDENCE, § 208. Effect of amendment as withdrawal of original pleading, see ante, §§ 252, 264. Effect of failure to appear, see APPEARANCE, Effect of withdrawal of appearance, see AP- Effect on ruling as to plea in avoidance of mat- Review of decisions involving discretion of court, [i] (Sup. 1871) Waiver of objections to proceeding on original | complaint on withdrawal of substituted complaint, see post, § 406. When an answer has been filed, and a demurrer sustained to one paragraph thereof, and Waiver of objections to rulings, see post, § 416. a reply filed to other paragraphs, the plaintiff [a] (Sup. 1824) A party has a right to withdraw a demur rer at any time before the judgment on it is recorded, unless the demurrer be frivolous.Call v. Ewing, 1 Blackf. 301. [b] (Sup. 1841) Where the circuit court refused to permit the defendant to withdraw one of his pleas after some of the jurors were sworn, where the withdrawing of them would have deprived the plaintiff of the right to open and close the cause to the jury, the supreme court held that, admitting they had a supervisory power over the discretion of the court below in such a case, a point not decided, there was no reason for supposing that the discretion in this case had been improperly exercised.-Sanders V. Johnson, 6 Blackf. 50, 36 Am. Dec. 564. It is discretionary with the trial court to permit pleas in bar to be withdrawn, and to give leave to file a plea in abatement.-D. S. Morgan & Co. v. White, 101 Ind. 413. [m] (Sup. 1886) A plaintiff may, at any time before the jury retire, dismiss part of his complaint; and a general objection to the offer to dismiss will present no available question on appeal; for, if the dismissal leaves the complaint indefinite, the defendants should move to make it more specific.-Louisville, N. A. & C. Ry. Co. v. Worley, 107 Ind. 320, 7 N. E. 215. [n] (Sup. 1887) Where a pleading contains an admission, the party has a right to show under what circumstances his pleading was written and to explain or contradict it by any competent evidence, but he cannot destroy its competency by withdrawal.-Baltimore & O. & C. Ry. Co. v. Evarts, 14 N. E. 369, 112 Ind. 533. [0] (Sup. 1890) Where a defendant, after the allowance of an amendment to the complaint, asked permission to withdraw its demurrer to the original complaint, it is the duty of the court to grant the request, and a refusal is error.-Hartford City Natural Gas & Oil Co. v. Love, 25 N. E. 346, 125 Ind. 275. [p] (Sup. 1900) An agreement that "all matters material in evidence might be proved under the general de [h] (Sup. 1864) The court, in the exercise of a sound dis-nial to the pleadings, the same as if specially cretion, upon proper cause shown, may allow pleadings in bar to be withdrawn, and pleas in abatement to be filed.-Patterson v. Mercer, 23 Ind. 16. It is not a sufficient reason for allowing pleadings in bar to be withdrawn, and a plea in abatement fiied, that the defendant's counsel thinks the plea best suited to meet the facts of the case.-Id. pleaded by cross complaint, answer, or reply," does not withdraw from the record cross complaints filed when the agreement was made.— Capital Nat. Bank v. Reid, 55 N. E. 1023, 154 Ind. 54. [a] (App. 1903) When a pleading is withdrawn, the rulings thereon pass out of the record.-Chappell v. |