Pace v. Grove

26 Ind. 26

Opinion

Ray, J.

The complaint in this ease sets forth two promissory notes and a mortgage given to secure their payment, and asks for judgment and other proper relief. There is no averment that the notes were unpaid. A demurrer was filed to the complaint and was overruled. This was error. It has been ruled by this court, in the case of Lawson v. Sherra, 21 Ind. 363, that in an action upon a note the complaint, to be sufficient, should contain an averment that the note remains unpaid. The demurrer should, therefore, have been sustained. "We do not feel it to be our duty to review the action of the court upon the answer to the complaint.

L. M. Ninde and H. S. Taylor, for appellants.

The judgment is reversed, with costs, and the court below is directed to sustain the demurrer to the complaint.