description is necessary other than such as to connect the instru ment which must be copied into the pleading, or the original or a copy be filed with the same. And where the instrument on which the action is founded does not import a consideration, one must be averred in the complaint with convenient certainty. § 18. Effect of certain expressions in the complaint. Except perhaps in the cases mentioned above, by express provision of the statute, such allegations as duly, lawfully, etc., have no effect in giving certainty to allegations otherwise uncertain. So where, in an action against the indorser of a negotiable promissory note, the complaint being otherwise regular, in order to fix the liability of the indorser, in one paragraph it was alleged that the note was duly demanded at the proper time and place and that the indorser had notice, and in another, that the indorser had due notice of the nonpayment of the note, it was held that both paragraphs were bad.1 §19. Averments in complaint in actions concerning real estate. In actions for the possession of real estate, for partition, for foreclosure of a mortgage, enforcement of liens, for specific performance of a contract, for the conveyance of lands and the like, there should be such certainty of description, as to venue, as to bring the case within the jurisdiction of the court, and such minuteness of description of the premises as to enable a surveyor to find the land and give the location and boundaries. § 20. Averments in complaint for the possession of personal property. In an action for the possession of personal property, there should be such a certain description of the property as will enable the sheriff to identify it, if this be practicable; and in all cases, there should be such a degree of certainty as will enable the officer to ascertain, and, upon examination, estimation or inquiry, to identify it. § 21. Averments in complaints for injury to lands. In actions for injury to lands, the particular premises must be described with substantially the same certainty as in actions for possession, and in actions for injury to personal chattels, the property must be described with such convenient certainty as 1 Armstrong v. Cook, 30 Ind. 26. By Frazer, J., "What is due notice is a question of law." is practicable, and the value or extent of injury should also be alleged. § 22. Rules where the facts are peculiarly within the knowledge of the adverse party. In some cases it occurs that the facts are peculiarly within the knowledge of the defendant, and it even often happens that the written instrument which is the foundation of the action is in the possession of the defendant, and that the plaintiff has no copy. In such cases, less certainty is requisite than the rules otherwise require; and where the defendant has the instrument sued on and where for that or any other reason, the plaintiff is unable to file it or a copy, the allegation of such an excuse dispenses with the requirement to file the same. § 23. Rule in regard to declaring on written instruments. The statutes having substantially abolished the distinctions between instruments of writing under seal and those not under seal,1 the distinction in the mode of pleading them is also abolished. But under the code, if the contract is such as is required by law to be in writing, and no writing be copied into or filed with the complaint, according to the rule already pointed out, the complaint will be bad; the presumption being that the contract is not a written one; and the objection may be taken on deBut not so in the case of a sale of goods, where either a writing, payment of earnest or part delivery will render the contract valid; in such case, if the plaintiff rely upon part delivery or earnest, he need not aver it, but the objection must be by answer. 2 murrer. § 24. Common law rules as to setting out written instruments, changed by the code. The rule already stated, requiring all written instruments to be introduced as part of the record, in all cases, in the first instance, dispenses with many perplexing distinctions in the common law pleading as to the mode of declaring upon written instruments, and the manner of setting them out, and the several reasons concerning the same; so that they exist in Indiana as matter of legal history only. § 25. Complaint good where it shows plaintiff entitled to 2 12 R. S. (1876) 146, § 273. Harper v. Miller, 27 Ind. 277. any relief. If a complaint, or a paragraph, where the complaint contains more than one, entitles the plaintiff upon its face to any judgment, it will be held good on demurrer, though it may be bad on its face as to part of the cause of action set up or claimed in such complaint or paragraph.1 1 Howe v. Dibble, 45 Ind. 120. CHAPTER IV. JOINDER OF PARTIES AND CAUSES OF ACTION. § 1. Introductory section, stating the general inquiry, who shall be parties. 2. Plan of the chapter. 3. The code adopts the chancery rule of parties, how far. 4. Who must be plaintiff. 5. Where actions survive, who plaintiffs. 6. Actions on official bonds. 7. Actions by married women. 8. Infants may sue, how. 9. Joinder of plaintiffs, rule as to. 10. Death of plaintiffs pending the action. 11. Seduction of an unmarried female, who to sue in case of. 12. Seduction of daughter or ward, parent or guardian may sue. 13. Husband or father deserting family or imprisoned, wife or daughter may sue. 14. Father, and, in certain cases, the mother may sue for injury to minor child. 15. Father or mother may sue for damages for killing an infant, and representative for killing an adult in certain cases. 16. Parties defendant. 17. General provisions of the code. 18. General rule as to parties defendant. 19. Persons severally and immediately liable may be joined in certain cases. 20. When married woman sued, her husband to be joined except in certain cases. 21. Suit on claim by assignor without indorsement. 22. In actions concerning real estate. 23. General statutory provisions as to parties. 24. Substitution of parties by interpleader. 25. General suggestions; joint debtors or creditors all to sue or be sued. 26. Injury to rights of several by one joint act. 27. Joint wrong doers may be sued jointly or severally. 28. Joint action for act of servants of several. 29. Joint action will not lie for injury by several dumb animals. 30. Actions for possession of or injury to lands or chattels, who parties. 31. Slander, libel and malicious prosecution. 32. General rule. 33. Changes by the code, causes which may be united, enumerated. 34. Joinder of certain causes an innovation. 35. The last section anomalous. 36. Consequences of a misjoinder. 37. Duplicity defined. 38. Where suits unnecessarily multiplied, they will be consolidated and costs taxed against plaintiffs. §1. Introductory section, stating the general inquiry, who shall be parties. As has already been stated there is but one form of action known under the code, and that is denominated a civil action, through which alone a party may seek the enforcement and protection of private rights and the redress of private wrongs. It being determined to resort to legal proceedings, for the enforcement of a right or the redress of a wrong, the form and requisites of a complaint having been determined, the next question that arises is, Who are the proper persons to be made parties to the action as plaintiffs or defendants? (the designation of parties adopted by the code), and, if more than one plaintiff or defendant, who are to be joined in one complaint? § 2. Plan of the chapter. It will perhaps be most convenient to state concisely the rules laid down by the code, on the subject of parties; and to notice their application to the state of the law of parties before the code, and afterwards to notice and illustrate some of the rules of pleading as to parties not changed nor specially mentioned in the statutory provisions. 83. The code adopts chancery rule of parties—how far. It has been said that the code adopts the chancery rule as to parties; but this remark only applies in a qualified sense. Where the action would have been at law before the code, the common law rule of parties still prevails, except as expressly modified, with perhaps this exception, that in cases even where before the code, the remedy was at law, but where the action relates to property, real, personal or mixed, the chancery rule as to parties generally applies, as will hereafter appear. But in actions for the recovery of money the code has wrought no material change in the rules as to parties, with the exception of the cases specially mentioned, and which will be noted hereafter. But where the remedy would be by bill in chancery, the equity rule prevails. 4. Parties plaintiff; who must be. All persons having an interest in the subject of the action, and in obtaining the relief demanded, must be joined as plaintiffs, excepting where a different provision is made by the code. In consonance with the proposition just stated, it is further provided that every action must 12 R. S. (1876) 32, § 1. 2 Tate v. O. & M. R. R. Co., 10 Ind. 174. 32 R. S. (1876) 39, § 17. |