Hunt v. Raymond

11 Ind. 215

Opinion

Worden, J.

This was an action by the appellees against the appellant on two notes. Judgment for plaintiffs. The only error relied upon to reverse the judgment is the admission of one of the notes in evidence. It is described in the complaint as being for 139 dollars, 38 cents, and a copy was filed with the complaint, by which it appears to have been for 139 dollars, 39 cents. The note offered in evidence was for the latter sum, and objection was made for the variance as to amount. On the supposition that the copy of the note filed would not control the description of it in the complaint, still the complaint could have been amended on the trial. 2 R. S. p. 48, § 99, and p. 44, § 78. That being the case, the defect must be deemed to be amended here. Id. p. 162, § 580.

S. Colgrove, for the appellant. J. Brown and T. M. Browne, for the appellees.

It is also objected that the complaint was against Joshua P. Ihmt, and the note offered in evidence was signed by J. P. Hunt. There is nothing in this objection. Muirhead v. Snyder, 4 Ind. R. 486. The note, or a copy of it, was filed with the complaint as a part of the cause of action. This is equivalent to an averment that the defendant made the note by the name of J. P. Hunt. If he had intended to put in issue the making of the note by that name, he should have denied the same, under oath. Unthank v. The Henry County Turnpike Co., 6 Ind. R. 125.

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