The opinion
*198 On Petition foe a Rehearing.
Elliott, C. J.
In the brief of the appellee on the petition for a rehearing, it is argued that the complaint is good for special damages, and it is tacitly conceded that it was not sufficient to entitle appellee to recover the statutory penalty. We think it is clearly demonstrated in the opinion heretofore filed that the complaint shows that no special damages were sustained, and, if this be true, there is, of course, no right of action.
It is plain that the theory of the complaint was that the appellee was entitled to the statutory penalty, and it is evident from its whole scope and tenor that the pleader intended to present a cause of action upon that theory, and no other. The object of pleading is to present, in a distinct and definite form, questions of fact for trial, and this object can not be accomplished unless parties are required to state positively the facts upon which they rely, and in accordance with a distinct, definite and controlling theory. If ambiguous pleadings are tolerated, no issue can be framed which will present in an intelligible form questions for trial, and perplexity and confusion will necessarily result. It is no great hardship to require obedience to rules of pleading and logic, and not to do so will result in the evil of leaving disputants without a direct issue, and the courts without the means of determining the compentency or relevancy of evidence. In order to bring the parties to an issue, it is necessary to require them to make their pleadings conform to some definite theory, and to be sufficient upon that theory. The theory is to be determined from the general scope and averments of the pleading, and not from isolated or detached averments. Our cases have steadily maintained the rule that a pleading must proceed on a definite theory, must be good on that theory, and must be judged by its general tenor and scope. Western Union Tel. Co. v. Young, 93 Ind. 118 ; Mescall v. Tully, 91 Ind. 96; Platter v. City of Seymour, 86 Ind. 323 ; Johnston v. Griest, 85 Ind. *199 503 ; Jackson School Tp. v. Farlow, 75 Ind. 118 ; Neidefer v. Chastain, 71 Ind. 363 , S. C., 36 Am. R. 198; Kimble v. Christie, 55 Ind. 140 .
Filed June 7, 1884.
A complaint for the recovery of a penalty must be good for that purpose, and not for some other, since to rule otherwise would put it in a plaintiff's power to make an elastic pleading, changeable to meet the exigencies of his case, Of course, •causes of action may be stated in different paragraphs, but in such cases each paragraph must be complete in itself. The cause of action under discussion is set forth in a single paragraph, and was framed on a single theory, and it can not be controlled by the isolated averment which it is now claimed makes it good on another and distinct theory.
The appellee did not file a brief until after the cause had been decided, and the long established rule would have warranted us in disregarding the points made on the petition, but, under the peculiar circumstances of the case, we have •deemed it proper to except it from the operation of the rule.
Petition overruled.