Hauser v. Hays

11 Ind. 368

• Court: Indiana Supreme Court
• Decided: December 16, 1858
• Status: Published

Opinion

Worden, J.

Suit by the appellees against the appellant before a justice of the peace, where judgment was rendered by default, and the cause appealed to the Circuit Court, where it was tried, and judgment rendered for the plaintiffs.

The cause of action filed, consisted of two notes, signed N. T. Hauser, and payable to W. W. and C. H. Hays.

In the Circuit Court the defendant moved to dismiss the cause without, however, stating the ground of his motion. The motion was overruled, and the defendant excepted.

If the motion was predicated upon any insufficiency of the writ, as, that it was issued by the initials of the parties only, we cannot notice the defect, as it was not pointed out, and as the writ is not before us.

If the alleged insufficiency of the cause of action was the ground of the motion, it was correctly overruled, as that is sufficient. Parry v. Henderson, 6 Blackf. 72.—Clark v. Dunlap, 2 Ind. R. 551.—2 R. S. p. 456, § 35.

It is claimed that the evidence offered, being ihe notes only, was insufficient to sustain a finding for ihe plaintiffs. There is nothing in this objection. The notes were filed as a cause of action, and the execution of them by the defendant, not being denied under oath, no proof of such execution was necessary. 2 R. S. p. 455, § 34.—Parry v. Henderson, supra. Neither was any proof necessary to show that the notes were payable to the plaintiffs, that not being pnt in issue by any form of pleading verified by affidavit. Abernathy v. Reeves, 7 Ind. R. 306.

N. T. Hauser, for the appellant.

Per Curiam.— The judgment is affirmed, with 10 per cent, damages and costs.