On Petition eor a Rehearing..
Worden, J.— In this case a petition for a rehearing lias been filed; but, upon again looking through the case, we find no reason to change the conclusion formerly arrived at..
The counsel for the petitioner says, in the petition : “The, opinion only professes to deal with two defects in the form of the answers: a letter ‘s’ is wanting in one paragraph,, and a few words in the other. The1 section referred to, as I understand it, covers such defects as these. It says : ‘No. judgment shall be stayed or reversed, * * * by the Supreme Court for any defect in foim, variance or imperfections'* in the record,pleadings,’’ etc., ‘which by law might have been amended by the court below.’ 2 R. S. 1876, 246, sec. 580.”
It seems to us to be quite clear that where a demurrer for want of sufficient facts, either to a complaint or answer, has been erroneously overruled, and exception duly preserved,, the defect in the pleading demurred to can not be aided by section 580,of the code.
That section was urged upon our consideration to aid a defective complaint, in the case of Sinker, Davis & Co. v. Fletcher, 61 Ind. 276. That was a suit upon the endorsement of a note, and the objection to the complaint, to which a demurrer for want of sufficient facts was overruled, was that, though in point of fact a copy of the endorsement was filed with the complaint, it did not profess to file such copy. This court said : “It is also insisted by the appellees, that the complaint ought to be deemed amended, in this court, under the provisions of section 580 of the code. But we can conceive of no case in which a complaint will be deemed amended, in this court, which is so defective as that a de*373murrer filed to it, for the want of • a statement of sufficient facts to constitute a cause of action, should be sustained, where the question here arises upon the correctness of the xuling below on the demurrer.” To the same effect is the •case of Utica Township, etc., v. Miller, 62 Ind. 230.
In Friddle v. Crane, 68 Ind. 583, a suit was brought upon a note, the complaint being defective in not alleging that the note was unpaid. A demurrer to the complaint for want of sufficient facts was overruled. The judgment below in favor of the plaintiffs was reversed for this defect in the •complaint, and on petition for a reheai’ing this court, by Niblack, J., said:
“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 Renee 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 recovering the judgment.
“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 was it whether the defect in the complaint was one which would have been caused by the finding, if there had been no. demurrer raising the question of the defect. Neither was at whether the judgment was right on the merits. It was simply, was the complaint sufficient upon demurrer?
*374“For reasons given in the opinion, vve had to decide, reluctantly we admit, that the complaint was, in legal contemplation, materially defective. A complaint, had upon demurrer for want of sufficient facts, can not be deemed amended in this court.”
It can make no difference in principle whether the defective pleading, erroneously held to be good on demurrer for want of facts, was a complaint or an answer. In either case,, when the question presented here involves the correctness of the ruling on the demurrer, we can not regard the defective^ pleading as amended.
The counsel for the petitioner has cited the . following; cases, in which section 580 of the code has been invoked in. order to the affirmance of judgments. But they are all in entire harmony with the decision in this case and those herein-before noticed. In none of them has it been held that an. erroneous ruling on a demurrer will be cured, or that the; defective pleading demurred .to will be deemed amended, by section 580, where the question presented here involves the' correctness of the decision on the demurrer. Scott v. Zartman, 61 Ind. 328; Coan v. Grimes, 63 Ind. 21; Wiles v. Lambert, 66 Ind. 494; Williams v. Wilbur, 67 Ind. 42; Davis v. Doherty, 69 Ind. 11; Child v. Swain, 69 Ind. 230.
The petition for a rehearing is overruled.