
    Rosa v. Holm.
    1. Pleadings and evidence. Allegations in an answer by way of avoidance, upon which issue is joined by the replication should be sustained by evidence, unless their truth is not apparent upon the face of the pleadings.
    
      Appeal from WinnesheiJc District Court.
    
    Wednesday December 12.
    
      8. A. Tupper, for the appellant.
    
      8. Bullis, for the ajipellee.
   Wright, J.

Plaintiff declares upon a promissory note. Defendant answers admitting the execution of the note, but setting up usury. This is denied in the replication. The cause was submitted on the pleadings, and the court found in favor of defendant as to usury, rendering judgment in favor of the plaintiff for the principal, and against the defendant in favor of the school fund for the ten per cent &c. Plaintiff appeals.

Held, That defendant’s answer set up new or affirmative matter and being denied, should have been sustained by evidence. It was error therefore to find against the plaintiff upon the issue thus joined, without proof to sustain the defense, the usury not being apparent from the face of the note.

Judgment reversed.  