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70 Ind. 446

Underwood v. Sample

Indiana Supreme Court

Decided May 15, 1880

Indiana Supreme Court · decided 1880-05-15

<p>Decedents’ Estates. — Executor may Extend Time of Payment. — Agent.— Principal and Surety. — An executor has power, either personally or through an agent, to extend the time of payment of a debt due the estate of his testator.</p> <p>SaMe. — Extension of Time. — Agreement.—Delivery.— Evidence. — •’Where, in an action on a promissory note, a surety alleged an agreement for an extension of time as a defence, evidence by the principal maker that the agent of the executrix of the payee of the note had made a written memorandum of an agreement extending the time of the payment of the note, which the witness had read, hut the exact contents of which he could not recollect, nor whether it was signed or not, and which was not delivered to him, but was retained by such agent, is not sufficient to sustain such defence. Held, also, that such proof did not establish a parol agreement, and failed to prove any valid written agreement for an extension of time.</p> <p>Same. — Execution of Mortgage, to procure Extension. — Inadequacy of Security. — Where, in such action, the answer alleges the execution of mortgage security as the consideration of an alleged extension of time, it is not a sufficient reply to allege that the value of the mortgaged premises was inadequate to fully secure the debt.</p> <p>Supreme Court. — Bill of Exceptions. — Petition for Rehearing. — Where an objection to a hill of exceptions was not referred to by the appellee in his original brief, and is for the first time presented in his petition for a rehearing, it will not then be considered by the Supreme Court. The appellee is as much hound to present in the first instance all the questions relied upon by him as is the appellant, and his failure to do so operates in the same way, against him, upon his application for a rehearing.</p>

Relies on Graeter v. Williams · Heavenridge v. Mondy · Yater v. Mullen

Good law ✅— No negative treatment on recordhow we know

Decided 1880-05-15

How this case has been cited

Cited by 9 later decisions — most recently May 1915

9 state decisions

301880189019001910decided

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 for a rehearing.

Niblack, J.

¶2— The appellee has filed an earnest petition ” for a rehearing in this case, upon the alleged ground that-the bill of exceptions shows on its face that all the evidence given upon the trial is not in the record, and that, hence, the question of the sufficiency of the evidence to sustain the verdict was not properly before this court at the hearing. The appellant denies that there is any thing in the bill of exceptions either showing or tending to show that it does not contain all the evidence given in the cause, and insists that there is no defect in the record with respect to such evidence.

¶3The objection thus urged to the bill of exceptions was not made, or in any manner referred to, by the appellee in his original brief, and is for the first time now presented by his petition for a rehearing. By the well established practice of this court, the objection comes too late. We can not now be called upon.to-reopen the cause for the purpose of inquiring whether *451there may not have been some defect in the record, of which the appellee might have availed himself, when he filed his original brief, but did not. The appellee is as much bound to present, in the first instance, all the questions relied upon by him, as is the appellant, and his failure to do so operates in the same way, against him, upon his application for a rehearing.

¶4In that respect both parties stand in the same relation to this court. Brooks v. Harris, 42 Ind. 177; Heavenridge v. Mondy, 34 Ind. 28; Yater v. Mullen, 24 Ind. 277; Porter v. Choen, 60 Ind. 338; The New Albany, etc., R. R. Co. v. Huff, 19 Ind. 315; Graeter v. Williams, 55 Ind. 461.

¶5Besides, the alleged omissions in the bill of exceptions are of a character which, if found to exist, might easily be supplied by a Avrit of certiorari from this court, in the event that a rehearing should be granted, and thus the objection now urged by the appellee to the bill of exceptions would be obviated upon a resubmission of the cause.

¶6The petition for a rehearing is overruled.

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