verted by the adverse party, as upon a direct denial or avoidance, as the case may require. Allegations of value or amount of damage shall not be considered as true by the failure to controvert them; but in actions upon account, in which an itemized bill of particulars, the correctness of which is duly affirmed or sworn to by the plaintiff, or some one in his behalf, has been filed with the complaint, a default by the defendant shall be deemed to admit the correctness of the bill of particulars, as sworn or affirmed to, and judgment may be rendered thereon without further evidence.

When the complaint specially sets out the consideration, an answer of want of consideration is included in the general denial. Butler v. Edgerton, 15 Ind. 15; Nixon v. Beard, 111 Ind. 137.

A refusal to reply to an answer admits its truth. Adams v. Tuley, 1 App. 490. Pleadings should state facts, not the evidence in proof of them. King v. Insurance Co., 45 Ind. 43.

Blank dates and amounts in the essential averments of a pleading must be avoided. Williams. Nesbit, 65 Ind. 171.

Matter in a reply to a counter-claim is deemed controverted by the defendant. Welch v. Bennett, 39 Ind. 136.

All material allegations of a complaint not controverted are considered as true. Browning. Merritt, 61 Ind. 425.

Averments as to damages not considered true by a failure to deny them. Reynolds . Baldwin, 93 Ind. 57.

On default the damages must be proven. McKinney v. State, ex rel., 101 Ind. 355.

387. (384.) Damages, when recoverable.-445. Whenever damages are recoverable, the plaintiff may claim and recover, if he show himself entitled thereto, any damages which he might have heretofore recovered for the same cause of action.

388. (385.) Relief-Extent thereof.-450. The relief granted to the plaintiff, if there be no answer, can not exceed the relief demanded in his complaint; but, in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.

A defect in a prayer for relief can not be reached by demurrer. Baker v. Armstrong, 57 Ind. 189; Lowry v. Dutton, 28 Ind. 473.

The court is confined, in granting relief, to the prayer in the complaint, only, in cases where there is no answer: in all others it may grant any relief consistent with the facts alleged. Humphrey v. Thorn, 63 Ind. 296; Shattuck v. Cox, 97 Ind. 242.

Interest may be allowed though it increases the amount demanded. Ross v. Smith,

113 Ind. 242.

The prayer for relief does not control as to the relief that may be granted. Anderson. Ackerman, 88 Ind. 481.

389. (386.) When party constructively summoned may defend.— 67. A defendant constructively summoned shall be allowed, at any time before judgment, to appear and defend the action; and upon a substantial defense being disclosed, time may be given, on reasonable terms, to prepare for trial.

This section does not apply to bastardy cases. Davidson v. State, ex rel., 62 Ind. 276.

390. (387.) Complaint must be proved.-68. The statements of a complaint against a defendant constructively summoned, and who has not appeared, except such as are for his benefit, shall not be taken as true, but shall be established by proof.

391. (388.) Plaintiff may be examined.-69. Before rendering judgment against a defendant constructively summoned and who has not appeared, the court may cause the plaintiff to appear personally in court, or before a commissioner, and answer, under oath, interrogatories concerning the matters in the complaint, or any matters which might be set up in defense thereto, including matters of set-off and counter-claim, and may order the examination to be reduced to writing, and filed with the papers of the action.

392. (389.) Adjustment of set-off or counter-claim.—70. If, upon the examination provided in the last section, any matters of set-off or counter-claim are disclosed, the same may be adjusted by the judg

ment.

393. (390.) No personal judgment.-71. No personal judgment shall be rendered against a defendant constructively summoned, who has not appeared in the action.

Personal judgments can not be rendered on constructive service without an appearance. Sowders v. Edmunds, 76 Ind. 123; Quarl v. Abbett, 102 Ind. 233; Mitchell r. Gray, 18 Ind. 123; Moyer v. Bucks, 2 App. 571.

394. (391.) Variance immaterial, unless party misled.-130. No variance between the allegations in a pleading and the proof is to be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must be shown in what respect he has been misled; and, thereupon, the court may order the pleading to be amended on such terms as may be just.

Where there is a variance between the allegations in the complaint and the copy of a note sued on, the latter controls. Carper v. Gaar, 70 Ind. 212.

A variance between the notes mentioned in the answer and those offered in evidence, as to amount, will be deemed by the supreme court to have been amended. Davis v. Doherty, 69 Ind. 11; Lucas v. Smith, 42 Ind. 103.

No variance between pleadings and proofs is material, unless it be shown that it has prejudiced the adverse party. Farley v. Eller, 29 Ind. 322; Durham v. Fechheimer, 67 Ind. 35; Reddick v. Keesling, 129 Ind. 128.

When the attention of the court below has not been called to a variance, the supreme court will not notice it on appeal. Krewson v. Cloud, 45 Ind. 273.

A pleading can not be amended to conform to erroneous evidence. Cincinnati, etc., R. R. Co. v. Bunnell, 61 Ind. 183.

Nor so as to make a new issue after the evidence is heard. Trees v. Eakin, 9 Ind. 554; Maxwell v. Day, 45 Ind. 509; Lewark v. Carter, 117 Ind. 206.

Amendments may be made after a cause is submitted for trial and the evidence heard. Leib v. Butterick, 68 Ind. 199; Child v. Swain, 69 Ind. 230; Smith v. Flack, 95 Ind. 116.

A variance is material only when the facts proven are different from those pleaded. Louisville, etc., R. R. Co. v. Hollerbach, 105 Ind. 137.

395. (392.) Variance immaterial-Action of court.-131. Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.

An amendment can not be made to obviate a failure of proof. Cincinnati, etc., R. R. Co. v. Bunnell, 61 Ind. 183.

396. (393.) Failure of proof.-132. When, however, the allegation of the claim or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof.

When an allegation is unproved in its general scope and meaning, it is not a variance, but a failure, of proof. Jeffersonville, etc., R. R. Co. v. Worland, 50 Ind. 339; Paris v. Strong, 51 Ind. 339; Perry v. Barnett, 65 Ind. 522; Thomas v. Dale, 86 Ind. 435; Martin v. Cauble, 72 Ind. 67; Huntington v. Mendenhall, 73 Ind. 460.

397. (394.) Amendment-Delay thereby-Affidavit.-133. Any pleading may be amended by either party, of course, at any time, before the pleading is answered. All other amendments shall be by leave of the court. The party amending shall pay the costs of the leave to amend. When the trial is not delayed by reason of the amendment, no other costs shall be taxed. When the amendment causes a delay during any part of the term, or to another term, the party amending shall pay the costs of such delay. No cause shall be delayed by reason of an amendment, excepting only the time to make up issues, but upon good cause shown by affidavit of the party or his agent asking such delay.

A bad complaint can not be amended after verdict. Such amendment, if allowed, is no part of the record. Heddens v. Younglove, 46 Ind. 212.

Pleadings can not be amended so as to change the issue or to make a new one, after the submission of a case to the court or jury trying it. Trees v. Eakin, 9 Ind. 554; Maxwell . Day, 45 Ind. 509; Lewark v. Carter, 117 Ind. 206.

Amendments which might have been made below as of course will be deemed to have been made on appeal. Krutz v. Howard, 70 Ind. 174.

A party may amend on leave during the trial, or at the close of the trial. Leib v. Butterick, 68 Ind. 199; Child v. Swain, 69 Ind. 230.

The action of the court in permitting or refusing an amendment may be reviewed by the supreme court. Chicago, etc., R. W. Co. v. Jones, 103 Ind. 386; Koons v. Price, 40 Ind. 164.

But the record must contain all matters relating to such action. Feeney v. Mazelin, 87 Ind. 226.

It must appear that the lower court has abused its discretion before its action will be reversed. Citizens' Bank v. Adams, 91 Ind. 280; McClellan v. Bond, 92 Ind. 424. A new plaintiff may be substituted by amendment in an action of ejectment. Burk . Andis, 98 Ind. 59.

A pleading may be amended by filing an amendment thereto. Eigenman v. Rockport Association, 79 Ind. 41.

398. (395.) Contents of affidavit-Pleadings, when filed.-134. The affidavit shall show distinctly in what respect the party asking

the delay has been prejudiced in his preparation for trial by the amendment. When the action is continued for such cause, the party asking the delay shall file his pleadings at such time as the court may direct.

399. (396.) Names of parties-Pleadings corrected-Relief from judgment.-135. The court may, at any time, in its discretion, and upon such terms as may be deemed proper for the furtherance of justice, direct the name of any party to be added or struck out; a mistake in name, description, or legal effect, or in any other respect, to be corrected; any material allegation to be inserted, struck out, or modified-to conform the pleadings to the facts proved, when the amendment does not substantially change the claim or defense. The court may also, in its discretion, allow a party to file his pleadings after the time limited therefor; and shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any proceedings, on complaint or motion filed within two years.

The writ may be amended and the return thereon. Evansville, etc., R. R. Co. v. Lawrence, 29 Ind. 622.

A mistake in names of parties may be amended. Ferguson v. Ramsey, 41 Ind. 511.

Abshire v. Mather, 27 Ind. 381;

The granting of leave to amend after issue made, and before and on the trial, is very much within the sound discretion of the court. Burr v. Mendenhall, 49 Ind. 496.

Mistake in a judgment may be corrected, or blank therein filled, whenever the rec ord supplies the means of doing so. Miller v. Royce, 60 Ind. 189.

The filing of an amended pleading supersedes the original; the latter is no longer a part of the record. Westerman v. Foster, 57 Ind. 408.

Matters of description may be corrected after hearing evidence. Reed v. Cheney, 111 Ind. 387.

On application, under the latter clause of this section, to be relieved from a judgment by default, the applicant must show a meritorious defense by affidavit. Upon this point, counter-affidavits are not allowed; but with respect to the grounds of relief, evidence will be heard on both sides. Lake v. Jones, 49 Ind. 297; Bristor v. Galvin, 62 Ind. 352; State v. Howe, 64 Ind. 18; Buck v. Havens, 40 Ind. 221; Hunter v. Francis, 56 Ind. 460; Beatty v. O'Connor, 106 Ind. 81.

In proper cases it is the imperative duty of the court to relieve a party from a judgment. Smith v. Noe, 30 Ind. 117; Phelps v. Osgood, 34 Ind. 150; Bush v. Bush, 46 Ind. 70; Cavanaugh v. Railway Co., 49 Ind. 149.

The limitation of two years applies to the filing of the application, and not the granting of the relief. Smith v. Noe, 30 Ind. 117; Temple v. Irvin, 34 Ind. 412; Bush v. Bush, 46 Ind. 70.

The proceeding may be instituted by complaint or motion. Smith v. Noe, 30 Ind. 117. A demurrer to the application amounts to the submission of the proceeding for hearing. Nord v. Marty, 56 Ind. 531; Clandy v. Caldwell, 106 Ind. 256.

If the application is made at the term judgment is entered, notice to the adverse party is not necessary. Frazier v. Williams, 18 Ind. 416.

The action of the lower court will only be reviewed when there is an abuse of its discretion. Cooper v. Johnson, 26 Ind. 247; Blake v. Stewart, 29 Ind. 318; Wells r. Bradley, etc., Co., 3 App. 278; Devenbaugh v. Nifer, 3 App. 379.

In granting relief the court may impose reasonable conditions. Cavanaugh v. Railway Co., 49 Ind. 149.

The granting of relief is not confined to judgments by default. Flanagan v. Patterson, 78 Ind. 514.

Notice to the adverse party can not be given by publication. Beck v. Koester, 79 Ind. 135.

The supreme court will not weigh the evidence in such cases. Nash v. Cars, 92 Ind. 216; Wells v. Bradley, etc., Co., 3 App. 278.

When the appellate court would have had jurisdiction of the original action, it may grant relief from the judgment. Parker v. Indianapolis Bank, 126 Ind. 595.

A motion to set aside a judgment under this section must be in writing. Indianapolis, etc., Co. v. Crockett, 2 App. 136.

The limitation of two years does not apply to motions to correct mistakes in records. Harris v. Tomlinson, 130 Ind. 426.

This section applies only to civil actions, and not to special proceedings, such as the construction of drains. Hays v. Tippy, 91 Ind. 102.

As to what facts have been held sufficient to entitle a party to relief from a judgment, see Hays v. Bank, 21 Ind. 154; Sturgeons v. Hitchens, 22 Ind. 107; Hill v. Crump, 24 Ind. 291; Lake v. Jones, 49 Ind. 297; Packer v. Burt, 51 Ind. 588; Indianapolis Co. v. Caven, 53 Ind. 258; Hunter v. Francis, 56 Ind. 460; Nord v. Marty, 56 Ind. 531; Snipes r. Jones, 59 Ind. 251; Schlemmer v. Rossler, 59 Ind. 326; Bristor v. Galvin, 62 Ind. 352; Taylor v. Watkins, 62 Ind. 511; Adams v. Bank, 70 Ind. 89; Nash v. Cars, 92 Ind. 216; McGaughey v. Woods, 92 Ind. 296; Neitert v. Trentman, 104 Ind. 390; Clandy v. Caldwell, 106 Ind. 256; Beatty v. O'Connor, 106 Ind. 81; Dickerson v. Davis, 111 Ind. 433; Moon v. Jennings, 119 Ind. 130; Hobbs v. Board, 122 Ind. 180; Western Union Co. v. Griffin, 1 App. 46; Parker v. Indianapolis Nat. Bank, 1 App. 462.

If a judgment by default is taken contrary to an agreement it should be set aside. Hoag v. Old People's, etc., Society, 1 App. 28.

400. (397.) Name of defendant.-136. When the plaintiff is ignorant of the name of the defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name is discovered, the pleading or proceeding may be amended accordingly, either before or after service of the summons.

An appearance without objection is a waiver of any error in the use of a name. McCarthy v. McCarthy, 66 Ind. 128.

The complaint and summons may be amended so as to correctly name the defendant. Shackman v. Little, 87 Ind. 181.

401. (398.) Judgment not reversed for technical errors.-137. The court must, in every stage of the action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment can be reversed or affected by reason of such error or defect.

See section 670 and notes.

The most liberal intendment after verdict, in support thereof, should obtain. Indianapolis, etc., R. R. Co. v. Petty, 30 Ind. 261.

Errors for arrest of judgment must be much more material and glaring than those which may be made on demurrer. Reagan v. Fox, 45 Ind. 8; Gander v. State, 50 Ind. 539.

It must appear that the rights of a party are not affected in order that errors be disregarded. Rush v. Thompson, 112 Ind. 158; Rawson v. Pratt, 91 Ind. 9; Kepler v. Conkling, 89 Ind. 392.