Routh v. Spencer

30 Ind. 348 | Ind. | 1868

Gresory, J.

This was a proceeding supplementary to execution, commenced by tho appellees against the appellants, Routh, Routh, Canady, and Julian, the object of which was to reach the amount of two notes executed by Canady to Jeremiah T. B. Routh, against whom the appellees had a jugdment, the notes being in the hands of Julian, as attorney for Routh.

Canady and Julian answered, admitting tho indebtedness, and the possession in the latter of tho notes.

One Sanford, who was not a party, but who asked to he made, such, joined in a cross-complaint with the administrator of Joseph Routh (who was a party), in which Sanford set up an equitable interest in a part of tho amount secured by the notes, arising under an agreement between the payee and the administrator, executed before the commencement of this proceeding. On tho motion of the appellees this cross-complaint was rejected. This was right, if for no other reason, because it was not sworn to. See Coffin v. McClure, 23 Ind. 356.

Tho court bolow, on the motion of the appellees, rejected the answer of the appellants setting up tho same matter set forth in tho cross-complaint. This answer was not sworn to by either Canady, Jorerhiali T. B. Routh, or Julian. There was no error in this qction of the court.

The court excluded certain testimony offered by the appellants on the trial, but the abstract fails to show what the evidence was, or that it was in any way material. This court under rule ton will not pass upon the question. The motion for a new trial was properly overruled.

J. B. J. F. Julian, for appellants. G. II. Burchenal, for appellees.

The judgment is affirmed, with costs.