Wallace v. Reed

70 Ind. 263 | Ind. | 1880

Worden, J.

— The appellee sued the appellants, upon a promissory note alleged to have been made by the defendants, payable to the order of Jacob Van Trump, and by the latter endorsed to the plaintiff.

The defendants answered, among other things, by the general denial, and the cause was submitted to the court for trial, who found for the plaintiff and rendered judgment accordingly, over a motion by the defendants for a new trial, on the ground, among other things, that the finding was not supported by sufficient evidence.

Several questions are discussed by counsel for the appellants, which we pass over, excepting one, upon which the judgment will have to be reversed.

The answer put in issue not only the execution of the note by the defendants, but also the indorsement thereof by the payee, Van Trump, and required the plaintiff to put them in evidence; though, the answer not being verified, no further proof of their execution was necessary.

A bill of exceptions, purporting to contain all the evidence, shows that the plaintiff put the note sued on in evidence, but does not show that the indorsement was put in evidence.

This was a fatal defect in the plaintiff’s evidence, as has been held in several cases in this court. Wyant v. Pottorff, 37 Ind. 512; Jackson Township v. Barnes, 55 Ind. 136.

The judgment below is reversed, with costs, and the cause remanded for a new trial.