Pittsburgh, Cincinnati, & St. Louis Railroad v. Van Houten

On Petition eok a Rehearing.

Downey, J.

In disposing of a petition for a rehearing in this ■case, we depart from the usual practice by writing what we now have to say.

Counsel for appellee suppose that the case turned upon the point whether there were three or only two passenger cars in the train, and therefore have made an application for a certiorari, to bring up a correct copy of the complaint, alleging that by the original complaint it will appear that the allegation in the first paragraph was, that there were only two cars. Conceding the fact to be true, and we are satisfied that it is true, still we think it is clear that the case did not, and does not, turn upon that point.

The remark in the opinion concerning the number of cars in the' train, as alleged in the first paragraph of the complaint, was only incidental.

There were but two errors assigned, and but one of them considered. That one was the one alleging that the court committed an error in overruling the demurrer of the defendant to the second paragraph of the reply.

The second paragraph of the answer alleges that the train *96consisted of two first class passenger coaches, a baggage car, and locomotive. The question which we considered and decided, and the only question, was, whether the allegations of the second paragraph of the reply sufficiently met the second paragraph of the answer. The ground on which we held the second paragraph of the reply bad had no reference whatever to the number of passenger cars in the train, as alleged in the complaint. But the ground was, that that paragraph of the reply did not meet, either by denial or by avoidance, the material allegations of the paragraph of the answer. Hence the application for a certiora/ri need not be granted.

It is, moreover, contrary to the practice of this court to grant a writ of certiorari, to amend the record, after the case has been decided. Warner v. Campbell, 39 Ind. 409.

Counsel urge, in the petition for a rehearing, that all the matters stated in the second paragraph of the reply were admissible under the first paragraph, which was a general denial, and therefore insist that there was no error in overruling the demurrer- to the second paragraph. But counsel seek to apply a wrong rule. The rule is applicable when á demurrer has been sustained to a pleading, and the same matter is admissible under another pleading which remains. The case selected by counsel, as one of many which support this position, shows this: Fankboner v. Fankboner, 20 Ind. 62. The court, in that case, say: “We shall not inquire critically whether the paragraphs to which the demurrer was sustained were good or otherwise, for the reason that the matters set up in them as a defence, if valid for that purpose, could properly have been, and were, in point of feet, given in evidence under the first and fourth paragraphs.” See, also, the cases cited in 1 Abbott Ind. Dig. 62, sec. 470.

Counsel refer to the late case of Widener v. The State, 45 Ind. 244, to support them, but it, like the others, is a case where the demurrer was sustained.

They also refer to Speer v. Speer, 7 Ind. 178, to show that the rule is applicable where the demurrer has been overruled.. The demurrer in that case also was sustained.

*97Counsel also insist that the second paragraph of the reply was only a denial and, to that extent, a repetition of the general denial. We think it cannot be sustained on this ground. The allegations of the reply which we have set out in the opinion are a sufficient answer to this position.

It is urged that we should overlook this error in overruling the demurrer to the second paragraph of the reply, because, it is claimed, the case appears to have been properly tried, and a correct result reached. We are unable to see that the case was not decided, in favor of the plaintiff, upon, the ground that he had proved the allegations of the reply in question. See Peery v. The Greensburgh etc., Co., 43 Ind. 321, and oases cited, and Hawley v. Smith, 45 Ind. 183.

In this condition of the record, the appellant has a right to a reversal, for the error first assigned.

The petition is overruled.