Witherington v. Ware

The plaintiff’s petition alleged that the defendant was indebted to him in the sum of thirty-five dollars, besides interest, on a note. The note was fully described in the petition, and it was further alleged: “Said note is now lost. A copy of which is hereto attached, as near as possible.” There was no demurrer at the appearance term, and the execution of a substantially similar note was admitted in one of the paragraphs of the answer. Held: Though the petition might have been subject to a timely demurrer, still the action could not properly be dismissed on oral motion, and the court erred…