Atkinson v. Atkinson, 2 Colo. 381

Atkinson v. Atkinson

2 Colo. 381 | Colo. | 1874

Hallett, O. J.

The action was upon a promissory note to which plaintiff in error pleaded actio non accredit infra sex annos, and defendants in error replied a new promise in writing, and thereupon issue of fact was joined.

A demurrer to the replication would have presented the question whether the action was rightly brought on the note, but by rej oining to the replication plaintiff in error passed that question by and it cannot be considered. Upon the pleadings the action stands upon the new promise in the same way as if that had been declared on with the note as an inducement. Little v. Blunt, 9 Pick. 488. And if the action was upon the new promise by the 14th section of our *383Practice Act (Rev. Stat. 506), plaintiff in error was required to put in his rejoinder under oath, if he desired to call for proof of the indorsement. If defendants in error had declared upon the new promise, the case would have been precisely within the statute, and it cannot be different where an issue is made, as to the fact at a subsequent stage in pleading. We see no error in receiving the note with the indorsement thereon, and as to the amount of the judgment, plaintiff in error is not in a position to complain.

The cause was tried by the court without a jury, and we have often held that in such case error cannot be assigned upon the judgment when no exception was taken at the time the judgment was rendered. Phelps v. Spruance, 1 Col. 414. To the ruling of the court in admitting the note to be read in evidence, plaintiff in error duly excepted, but he made no objection to the judgment.

The judgment of the district court is affirmed, with costs.

Affirmed.