Seldonridge v. Connable

32 Ind. 375

• Court: Indiana Supreme Court
• Decided: November 15, 1869
• Status: Published

Opinion

Gregory, J.

Suit by the assignee against the assignor of a note not dated, but made payable “ nine months after date.” It is averred in the complaint, that the makers, “ on the 1st day of June, 1867, at,” &c., “by their note promised to pay,” &c. Suit was commenced on the 8th of August, 1867. A demurrer to the complaint was overruled by the court below, and this is the first alleged error complained of.

“ In general, it is not essential to a note that it should be dated; and if there be no date, it will be considered as dated at the time it was made.” 1 Parsons Rotes and Bills, 41.

There is no allegation in the complaint showing when the note became due. Taking the averments of the complaint as they are, the note was not due when the suit was commenced. The court erred in overruling the demurrer.

There are other questions argued by counsel, but as there was a trial on a bad complaint, they are immaterial, and it is not necessary for us to notice them.

Judgment reversed, with costs. Cause remanded, with directions to sustain the demurrer to the complaint, and for further proceedings.