¶1To a petition for a rehearing—
¶2delivered the following response:
¶3Counsel, in petition for rehearing, insists that as the execution in favor of Bennett & Fuqua, which was filed as an exhibit with the petition, fails to show that after the levy upon the hotel property it was returned ‘ ‘ no other property found,” that the allegation of the petition to the effect that the execution was so returned must be held to be false, and as a consequence there w,as a failure to show legal diligence. This is not correct. The allegation of the petition to the effect and in terms that the execution was returned “no other property found,” was admitted to be true by the failure of appellants to deny it. If the allegation had been denied so as to present an issue, and the execution appearing as it does without such return, there would have been a failure of proof of legal diligence. Counsel insists, however, that the exhibit controls the allegation in the petition. This is not the rule under our Code. An exhibit neither aids nor destroys the material averments in a pleading, and are not to be considered by the court in determining the sufficiency of a pleading, but may be properly considered as evidence on the trial of an issue tendered.
¶4*371Counsel also insists that there was a want of legal diligence in not bringing suit on the first note to the equity term, the last day of serving process to which was three days after the note fell due. To require suit to be insti- ■ tuted, and process served within so short a time would be ■ to require extraordinary diligence, which, under the circum- ■ stances would be oppressive, and such diligence never was required in any case. The suit was brought in the common law court four days after the note fell due.
¶5Petition overruled.