56 Ind. 172 | Ind. | 1877
Action by the appellees, against the appellants, upon promissory notes, executed by the defendants to the plaintiffs. Judgment for the plaintiffs.
The following supposed errors are assigned:
1st. Overruling demurrer to the third paragraph of complaint;
2d. Overruling appellants’ motion for a change of venue; and,
The third paragraph of the complaint was in the ordinary form of a complaint on a note, setting out a copy, and was good.
There is no substance in the first assignment of error.
The second and third errors assigned may be considered together.
The defendants had been ruled to answer, but, before discharging the rule, they filed an affidavit and motion for a change of venue from the county. The court declined. to pass upon the motion for a change of venue, until the defendants should have filed their answer; and the defendants refused to answer until the court should have passed upon the motion for a change of venue. The defendants thus refusing to answer, judgment was taken against them as for the want of an answer.
There was no error in these proceedings. The court was not bound to pass upon the motion for a change of venue until an issue of fact was formed. Matlock v. Fry, 15 Ind. 483; Dawson v. Vaughan, 42 Ind. 395.
The defendants having failed and refused to answer within the time prescribed, judgment was properly rendered as upon a default. 2 R. S. 1876, p. 67, sec. 69.
There is no error in the record.
The judgment below is affirmed, with’ costs and five per cent, damages.