On petition for a rehearing.
Niblack, J.The appellee has filed a petition for a rehearing in this case upon the grounds :
First. That the defect in the complaint was one which might have been supplied by amendment upon the trial, and hence it was a defect which this court ought to have considered as having been supplied by amendment.
Second. That the defect in the complaint was supplied by the evidence, thus curing the defect and making the finding and judgment right upon the evidence.
Third. That as the defect in the complaint was only of a formal and technical character, and as the judgment was right on the merits, there was no sufficient reason for reversing the j udgment.
Sections 99, 101 and 580 of the Code are cited to sustain these positions. Other authorities are also cited for the same purpose. But it must be borne in mind that the question first presented in this case was not one of variance between the complaint and the evidence and the supposed consequent right of amendment upon the trial. Nor *586was it whether the defect in the complaint was one which would have been cured by the finding, if there had been no demurrer raising the question of the defect. Neither was it whether the judgment was right on the merits. It was simply, Was the complaint sufficient upon demurrer?
For reasons given in the opinion, we had to decide, reluctantly we admit, that the complaint was, in legal contemplation, materially defective. A complaint, bad upon demurrer for want of sufficient facts, can not be deemed amended in this court. Sinker, Davis & Co. v. Fletcher, 61 Ind. 276.
There is no rule of practice better settled than that a judgment founded upon a bad complaint, not cured by the verdict, can not be maintained. The demurrer to the complaint having been erroneously overruled, it necessarily followed that the judgment had to be reversed.
The authorities cited do not bear upon the sufficiency of the complaint, but have reference to matters occurring at the trial.
The petition for a rehearing is overruled.