Knight v. Low

15 Ind. 374, 1860 Ind. LEXIS 454

• Court: Indiana Supreme Court
• Decided: December 17, 1860
• Status: Published

Opinion

Hanna, J.

Suit on a note and bill of exchange. The complaint averred that the defendant had a place of business and an agency, &c., at Morgantown; that John W. Knight was his agent, and the note and bill sued on grew out of, and were connected with, said agency.

The process was served by leaving a copy thereof at the said store, or place of business, in the absence of said agent. Hester, as amicus curien, moved to set aside the return made to that effect, which was overruled, and he excepted. In that capacity he could not except to a ruling of the Court. Campbell v. Swasey, 12 Ind. 70; Hust v. Conn, id. 258. A demurrer was filed to the complaint, and overruled; this was a full appearance, and therefore the demurrer to the' second paragraph of the answer, hereafter noticed, was properly sustained ; at least, if the precise form of getting rid of it would have been on motion, yet no injury resulted, of which appellant can complain. Answer: 1. “Denies that he is indebted to said plaintiff, as in complaint mentioned.” 2. Denies personal service of process, &e. The last paragraph of the answer was sworn to by the attorney for the defendant. Demurrer to the answer sustained.

Whether the demurrer should have been sustained to the first paragraph of the answer, we need not decide, as a bill of exceptions shows that the note and bill of exchange were introduced in evidence, and were sufficient, if properly before the Court, to sustain the finding, which was'for the plaintiffs. It is suggested, that as the plaintiff gave the instruments in evidence, all the purposes were arrived at which could have been effected by the denial if it had remained, and therefore, if there even was error in sustaining the demurrer it ought not to reverse the judgment, because no damage resulted therefrom, &c.

Per Curiam.

The judgment is affirmed, with 5 per cent, damages and costs.