
    John Brackett v. G. M. Adams.
    Bills and Notes — Action on Note — Note Must be Filed with Petition— Failure to File not Grounds of Demurrer — Remedy is by Rule.
    In an, action on a promissory note title writing should be referred to and filed with the petition but the failure to do so is not a ground of demurrer. 'But the appropriate remedy is by rule to compel the production of the note.
    APPEAL FROM BELL CIRCUIT COURT.
    March 15, 1872.
   Opinion of the Court by

Judge Hardin :

The petition alleges, in effect, the execution and delivery to the plaintiff by the defendant of a promissory note for, $73.99, and that in that sum the defendant was indebted to the plaintiff. These averments, in our opinion, constituted a good cause of action, the facts alleged being admitted by the demurrer.

Farmer, for appellant.

Adams, for appellee.

A note corresponding to that described in the petition is copied in the record; but it is not made a part of the petition, nor does the record show whether it was filed with the petition or not; but although the note should have been exhibited by a reference to it in the petition, showing it to have been filed with it, the omission was not a ground of demurrer, for notwithstanding it the petition started facts constituting á cause of action.. Burt the appropriate remedy of the defendant was a rule to compel the production of the note, or on failure to do so, or properly account for the non-production, of the note, to dismiss the action.

The defendant having, however, relied alone on a general demurrer to the petition, we concur in the action of the court below in overruling it.

Wherefore the judgment is affirmed.  