Denny v. Indiana & Illinois Central Railway Co.

11 Ind. 292

• Court: Indiana Supreme Court
• Decided: December 10, 1858
• Status: Published

Opinion

Hanna, J.

This was a suit upon a subscription of stock.

H. C. Newcomb, J. S. Harvey, J. S. Tarkington, and J. S. Miller, for the appellant. C. C. Nave, for the appellees.

The defendant answered-

1. A general denial.

2. That the stock was subscribed by an agent, who exceeded his authority.

3. That the stock was subscribed by one who pretended to act as, but was not, the agent of defendant.

4. Payment.

A demurrer was sustained to the second paragraph of the answer.

Reply to the fourth, but none to the third paragraph of . the answer.

Trial, and judgment for the plaintiffs. Motion for a new trial overruled. No written reasons were filed.

But one question is presented in the brief of the appellant, and, therefore, no other will be noticed, and that is, upon the correctness of the trial and judgment, without requiring an issue to be made upon the third paragraph of the answer.

That paragraph was an argumentative denial of the al- . leged subscription, which was shown by the complaint to be in writing. Without it had been sworn to, it could only operate as a general denial, and, therefore, it did not require a reply.

Per Curiam. — The judgment is affirmed, with 5 percent, damages and costs.