Rielay v. Whitcher

Hanna, J.

Suit on three notes described in one paragraph of the complaint.

Answer: 1. Denial. 2. Accord and satisfaction as to the first two notes in the order of their dates, and execution of the third, for the balance then due. 3. Payment of the first two notes.

Perhaps, in the original record it did not clearly appear that a reply to the third paragraph of the answer had been filed. That is, however, remedied by the amended record filed. Eeplies, then, in denial as to the second and third paragraphs of the answer, and therefore the error, if there was su.ch, assigned upon the want of a jeply to the third paragraph is obviated. With the answer the defendant filed interrogatories, addressed to the plaintiff's, with reference to the facts set up in the said second and third paragraphs. Ho affidavit accompanied them. The Court entered a rule that they should be answered. Upon the calling of the cause for trial they remained unanswered, and the rule not in any way discharged. The defendant moved to dismiss the suit, and also to continue the case, for the failure to answer said interrogatories. Ho affidavits were filed upon which to base or sustain the motions. The plaintiff’s attorney filed an affidavit of their non-residence in the State, and that they had not been present during the term, &c. The Court overruled the motions made by the defendant. Trial; judgment for the plaintiff's for the full amount of all the notes. Following the case of Meredith v. Laskey, it *460 would seem there was no error in the ruling of the ease on these motions. If the defendant had taken the proper steps to procure the evidence of the plaintiffs, as in ordinary proceedings for witnesses, we suppose, upon their failure to appear as such, cause should have been shown before a continuance would have been granted in consequence of their absence. Their answers to interrogatories would have been no more than evidence. But it is said the rule was not discharged. True, but it was not, in the first place, in conformity with the statute; as it did not fix the time within .which said answers should be filed. The defendant did not, in view of the affidavit of non-residence, &c., make a showing to the Court, that required either an attachment against the plaintiffs, or a dismissal, or continuance of the cause for want of such answer.

J. C. Denny, for the appellant. Judah § Viche, for the appellees.

The motion in arrest appears to have been predicated upon the idea that three notes between the same parties, of different dates, and all due could not be joined in one paragraph; and if they could, that the legal presumption would be that the one of the later date included all indebtedness, even the other notes of a previons date.

We are of opinion neither position is tenable. Whether, when the notes fell due they'constituted one debt, so far at least as to authorize the form of proceeding adopted, we need not decide, for the form adopted was, if faulty at all, but subject to the objection of duplicity, which is not cause of demurrer; consequently, not subject to be reached by this motion, under the circumstances. As to the latter point, see Spencer v. Chrisman, 15 Ind. 215 .

Per Curiam.

The judgment is affirmed, with 3 per cent, damages and costs.