Coen v. Funk

18 Ind. 345 | Ind. | 1862

Worden, J.

Action by Funk against Thomas M. Coen, Rufus Birch, William 8. Coen and Isaac N. Coen, upon promissory notes alleged to have been executed by the defendants, Judgment by default against Thomas M. Coen and Birch. William 8. and Isaac N. Coen pleaded several pleas that may be regarded as special denials of the execution by them of the notes sued upon. The substance of these pleas is that the notes were ante-dated, without their authority or consent, so as to make them become due before the time stipulated for. These pleas were not sworn to. On the trial, the defendants pleading, produced their co-defendants, who had been defaulted, and had them sworn as witnesses, and offered to prove by them the facts thus set up. The testimony was rejected apparently upon the ground that the witnesses were incompetent. Without passing upon the question as to the competency of the witnesses, we think the testimony itself was incompetent and rightly rejected. The execution of the notes was not in any manner denied under oath, and without such denial no proof was competent to disprove the execution by the defendants of the notes as declared upon, the plaintiff producing them and offering them in evidence. Unthank v. The Henry County Turnpike Co., 6 Ind. 125; Denny v. The N. W. Christian University, 16 Ind. 220. See also Evans v. The Southern Turnpike Co., at the present term.

Charles Tyler, J. E. McDonald and A. L. Roache, for the appellants. Joseph Ristine, for the appellee. Per Curiam.

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