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142 Ind. 490

Stotsenburg v. Fordice

Indiana Supreme Court

Decided September 17, 1895

Indiana Supreme Court · decided 1895-09-17

<p>Appellate Procedure. — Rehearing.—Points Which Will Not Be Considered. — Points not specifically made in the original briefs cannot be made on petition for a rehearing in the Supreme Court.</p> <p>Promissory Note. — Recovery of Interest Paid, in Excess of Contract Rate. — Mistake of Fact. — Assumpsit.—Payment of interest on a note, in excess of the contract rate, under a mistake of fact, may be recovered back whether or not the mistake was mutual.</p> <p>Demand. — Note.—Payment of Excessive Interest. — Answer.—Cross-complaint. — No demand is necessary before an answer, in an action on a note, claiming payment of excessive interest under a mistake as to the contract rate.</p> <p>Pleading. — Set-Off.—Counterclaim.—Partial Answer. — A plea setting up a set-off or counterclaim to part of the claim sued on is not bad in failing to respond to the balance, although it is directed to the entire cause of action.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1895-09-17

How this case has been cited

Cited by 10 later decisions — most recently October 1988

10 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On Petition foe Reheaeing.

Hackney, J.

¶2On the original hearing it was expressly conceded by appellant’s learned counsel that interest had been paid upon the note sued on, in excess of the contract rate, for the period of twenty-one years. In the judgment of the circuit court, there were allowed credits for such excessive payments, for thirteen years. Upon the propositions stated in the original opinion, the appellant insisted that all credits so allowed were erroneous. There was no effort to discriminate between credits, but all were treated as occupying the same status, and required to stand or fall by the strength of the propositions so stated. How appellant seeks a rehearing, insisting that we take up two or three of the many credits and consider the evidence with reference to them separately, and to hold that they were not supported. In other words, the existence of evidence, admitting credits generally, was denied upon the theories stated in the original opinion, and now it is insisted that particular credits were not authorized by the evidence, upon the same theories. We held against the abstract theories of the appellant, and found evidence supporting— not merely tending to support — credits generally, upon *498the question of a mistake in the making of excessive payments.

Filed November 6, 1895.

¶3Upon the question now presented, the rule of practice is. well established by this court, that points not specifically made in the original briefs, cannot be made on petition for a rehearing. See Elliott App. Proced., section 557, and authorities cited. We decline, therefore, to again look into the evidence, and upon this question hold that appellant has waived the inquiry. Other questions are suggested by counsel, but as they were fully considered and decided on the original hearing, and adhering to the_ conclusions then reached, the petition is overruled.

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