
    PLEADINGS — ERROR.
    [Hamilton (1st) Circuit Court,
    November 29, 1902.]
    Swing, Giffen and Jelke, JJ.
    Herman Suer v. William Kalbfell.
    Error in not Arresting Case From Jury Cured by Evidence Offered by Defendant.
    Where the petition, in an action on a promissory note, is in the usual fqrm under the code, an answer admitting the signing thereof and denying the other allegations, puts in issue the questions of delivery and the title and possession of plaintiff, and upon failure to offer the note in evidence the case should be arrested from the jury on defendant’s motion. But where, after the motion has been overruled, the defendant offers the note in evidence and the questions put in issue are covered by evidence sufficient to sustain a verdict for plaintiff, and the error in overruling the motion does not appear to be prejudicial, the judgment will be affirmed.
    Error to the court of common pleas.
    Renner & Renner, for plaintiff in error.
    W. W. Symmes, contra.
   GIFFEN, J.

The petition filed in the common pleas court is in the usual form for an action under the code upon a promissory note. The answer is as follows :

“This defendant admits that he signed the note set out in the petition herein, but he denies that there is due to plaintiff from him the sum of two hundred dollars or any amount whatsoever, for the reason that said note was obtained from him, the defendant, under and by misrepresentations; and he denies each and every allegation in plaintiff’s petition contained, not herein specifically admitted to be true.”

The admission that the defendant signed the note is not also an admission that the same was delivered to plaintiff or that he is the owner and holder thereof. A denial of each and every other allegation in the petition put in issue plaintiff’s title to the note; and upon failure to offer the note in evidence the court erred in overruling defendant’s motion to arrest the case from the jury.

The note was afterwards however offered in evidence by the - defendant himself, and the questions of title to and consideration for the note were fully covered. by the evidence which is all brought before us in the bill of exceptions, and we think sustains the verdict.

It does not appear that the defendant was prejudiced by the error of the court in overruling the motion, and the judgment will be affirmed.  