Conner v. Sharpe

27 Ind. 41

• Court: Indiana Supreme Court
• Decided: November 15, 1866
• Status: Published

Opinion

Frazer, J.

Sharpe sued William W. Conner and Charles Conner upon a promissory note purporting to be executed by them. There was a return of “not found” as to Charles. William answered: 1. A denial that he executed the note. 2. That the note had been materially altered after its execution and delivery, to-wit, by adding the name of Charles as a joint maker. The first paragraph, only, was sworn to. A demurrer was sustained to the second paragraph, and this is the only error assigned.

J. McCabe, for appellant.

We are unable to perceive how the appellant could be injured by the ruling complained of. Aside from the question as to whether the paragraph could have been of any advantage to him upon the trial, not being verified by oath, (concerning which it is not necessary to express an opinion,) it is very clear that the first paragraph admitted whatever defense would have been admissible in evidence under the second, inasmuch as it embraced the second and much more. If, ’after its execution, the note was so materially changed as not to bind the maker, it was, as changed, not the note he made. Harper v. The State, 7 Blackf. 61. The second paragraph should, therefore, have been stricken out on motion; and we have'repeatedly held that, in such a case, inasmuch as a demurrer sustained practically accomplishes the same end, no injury results, and the error, if any, cannot, therefore, be available here.

The judgment is affirmed, with costs.