Van Allen v. Spadone

16 Ind. 319, 1861 Ind. LEXIS 158

• Court: Indiana Supreme Court
• Decided: June 7, 1861
• Status: Published

Opinion

Davison, J.

This was an action by the appellee, who was the plaintiff, against Van Allen and Howel upon two promissory notes, each payable to one George Parker, who assigned them to the plaintiff.

The record contains a bill of exceptions, whereby it is shown that on the first calling of the cause, a rule was granted against the defendants to answer the complaint by the 8th- judicial day of the term, being February 13, 1860; upon that day, the cause having been regularly called, the defendant’s attorney asked leave for further time to discharge the rule, on account of the absence of his clients, which was granted by the Court, and the time extended until the next morning, February 11. In the forenoon of said day, the plaintiff demanded judgment for want of an answer; and thereupon the defendants’ attorney asked further time to answer, on account of the continued absence of his clients; but the plaintiff objected, and the Court refused to further extend the time. Whereupon the defendants, by their attorney, offered to filé a demurrer to the complaint, which offer the Court refused,''and thereupon gave judgment against the defendants for want of an answer, &e. These rulings are assigned for error.

P.'D. Pykernan, for the appellants.

We have looked into the complaint, and find it unobjectionable in form and substance; hence the demurrer, had the Court allowed the defendants to file it, would have been unavailing, and they are therefore not injured by the refusal to allow it to be filed. And the Court having once extended the time for a compliance with the rule to answer, it was plainly within its discretion whether it would, or not, allow further time. In this instance, it does not appear that such discretion has been abused.

Per Ouriam.

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