
    Chambers and Wife v. Nicholson.
    
      Practice. — Foreclosure.—Forties.—In the foreclosure of a mortgage executed by husband and wife, the wife is a proper party defendant.
    
      Pleading. — Discontinuance.—Suit to foreclose a mortgage. Answer, the general denial, and a paragraph professing to answer the whole complaint, alleging payment of a part of the debt secured by the mortgage. Boply of denial to this paragraph. Motion by defendant to discontinue the action because the reply had made an issue upon the defective answer.
    
      Held, that this motion was properly overruled.
    APPEAL from the Knox Common Pleas.
   Frazer, J.

This was a suit by the appellee against the appellants (husband and wife), to foreclose a mortgage executed by both.

A motion to strike out the name of the wife as a defendant was'correctly overruled. Surely this question needs no discussion. There was a general denial, and a paragraph of answer to the whole complaint, alleging payment of a part of the debt secured by the mortgage, and a reply thereto of denial, and thereupon a motion by the appellants to discontinue the action because the reply had made an issue upon the defective answer; which motion was overruled, and this is assigned for error. The point is too sharp even for the common law system of pleading, and is not supported by the authority (1 Chit. PL 523) cited to sustain it. Where the plea professed to answer only a part, and did no more, and the remainder was unanswered, regularity required that the plaintiff should take judgment as by nil dicit for the part unanswered, before replying. But that rule could not have applied in this case, for here the whole complaint was answered by the general denial.

J. G. Denny and G. G. Redly, for appellants.

W. B. Robinson, J. M. Boyle, andD.W.Viehe, for appellee.

A motion for a new ti’ial was overruled, and this, it is claimed, was error. It is claimed that the evidence was not sufficient to sustain the verdict. The particular point urged is, that an assignment of an auditor’s certificate of the sale of school lands was insufficient. The particular defect in the assignment is not, however, mentioned in the argument, and we confess our failure to discover it.

The judgment is affirmed, with ten per cent, damages* and costs.  