On Petition for a Rehearing.
Mitchell, J.The appellee has_ presented a petition for-rehearing which is supported by an elaborate argument. That the law of the case as applicable to the points decided in the original opinion was correctly announced, is not disputed, but. it is insisted that the court overlooked one of the points made in the original brief by counsel, to the effect that the complaint was bad, and that, therefore, the judgment should have been affirmed, on the ground that even if the second paragraph of answer was bad, it was good enough for a bad complaint.
It is said that suit was commenced on the note before it 'was due, and it is now argued, that as a demurrer was filed to the-complaint below and overruled, the court committed an error, and, therefore, this court should have carried the appellee’s demurrer to the answer back to the complaint, and affirmed the judgment. The ruling of the court below on the demurrer to the complaint was right.
The record entries show that the complaint was filed in the court below on the 5th day of February, 1875. It does not appear from the record that any summons was issued. On the 15th-of February, twelve days before the note fell due, the defendants appeared and submitted to a rule to answer. On the 17th the parties appeared and answers were filed by both defendants, and on the 5th day of March the plaintiff put the case at issue by filing replies. The record shows that the case was then continued. On the 18th day of October, some eight months after the note fell due, the plaintiff filed an amended complaint, with a copy of the note attached,, *112which is the only complaint set out in the record, and in this complaint it is averred that the note is due and remains unpaid. To this amended complaint the appellees filed a demurrer, which was overruled, which is the ruling now complained of as erroneous.
Filed March 13, 1885.In the consideration of the demurrer the court could look to the complaint and the demurrer, and nothing else, and these papers would not disclose the fact that the suit was commenced before the note fell due.
Upon a demurrer, the court inspects the pleadings before it and passes upon-their sufficiency from what appears upon the face of the papers and from proper exhibits attached. A demurrer is allowed only where the defect appears upon the face of the complaint. Douglass v. Blanckenship, 50 Ind. 160.
An action is commenced when a summons is placed in the hands of the sheriff for service, or when the defendant appears in some way recognized by the law. Charlestown School Tp. v. Hay, 74 Ind. 127. But these are questions of fact which can not be determined on a demurrer to the complaint.
In the case of Hust v. Conn, 12 Ind. 257, this court said: “ Whether the summons was or was not prematurely issued, does not appear in the complaint, and the statutory rule is, that a demurrer reaches such defects only, as appear on the face of the pleading.” ?
If, upon looking at the complaint and the exhibits attached, it had appeared that the cause of action was not then matured, the contention of counsel would be correct. Such is not the case here. When the demurrer was filed in the court below, the cause of action was more than eight months past due, and if the defendants desired to present to the court the fact that the suit was prematurely commenced, it should have been done by answer. Counsel rely on Seldonridge v. Connable, 32 Ind. 375. We do not think that case, fairly considered, holds anything contrary to what is here said.
Petition for a rehearing overruled.