93 Ind. 156 | Ind. | 1884
— The first proposition argued is that the court refused to compel the appellee to answer interrogatories propounded to him by the appellant. In our opinion this question is not properly presented. Such a question should be reserved by exception duly taken at the time the ruling is made, and the assignment in this court should be founded on the ruling. This was expressly decided in Reed v. Spayde, 56 Ind. 394, the court saying: “ The question is not properly presented. If an error was committed, it was not an ‘ error of law occurring at the trial.’ It is obvious that a new trial would not correct such an error; for, after a new trial was granted, the error would stand in the record the same as before. Such a question can be presented only by an assignment of error.” We think that the rule stare decisis requires us to adhere to this decision even if there were doubts as to its soundness. There is much reason, however, for maintaining the principle declared. Interrogatories are required to be filed with the pleadings, that is, before the issues are closed. R. S. 1881, sec. 359; Sherman v. Hogland, 73 Ind. 472. A rule must be taken to answer them, or the party can not be deemed
The appellant insists that there was error in refusing a new trial, because the note is signed J. E. Cates, and there is no evidence showing that he executed the note. It is enough to say that he admitted the execution of the note by his failure to deny it under oath, but if this were not enough we might add that he testified that he did sign it as surety.
A surety is released where payment of the note is extended, upon a valuable consideration for a definite period; he is not released, where the extension is for an indefinite period. Tracy v. Quillen, 65 Ind. 249.
Judgment affirmed.