On Petition for a Rehearing.
Niblack, J.After the verdict in this case was returned;, the plaintiffs, in addition to their motion for a judgment for a larger sum than was assessed in their behalf by the jury upon the answers to special interrogatories, moved the court for judgment in their favor for the sum of $600, and the costs due on the original judgment, upon the pleadings, on the ground that, as no general denial was filed, all the facts necessary to entitle them to such a judgment were admitted at the trial, and that motion was also overruled. A rehearing is prayed for in this case for the alleged reason that the circuit court erred in overruling that motion, and that we omitted to rule upon that question at the former hearing.
But the answers in this case, whether well pleaded or not,. *313presented issues which had to be tried and determined, and hence it can not be said that the cause was tried without an issue. As to what facts were admitted by the issues, as they were formed, were only questions of evidence at the trial. Besides the cause was apparently tried upon the theory that every material averment of the complaint was in issue. As illustrative of this theory of the trial, the first interrogatory submitted to the jury at the request of the plaintiffs was: “Did the defendants in this suit execute the bond sued on in this case as alleged in the plaintiffs’ complaint?” Other interrogatories were submitted, upon the motion of the plaintiffs, inconsistent with the idea that no issue had been formed upon the complaint. Under such circumstances the plaintiffs could not be heard to complain, after the trial was concluded, that the cause had been tried without an issue, or that the material averments of the complaint stood as confessed at the trial.
Where, without objection, a party alleging affirmative matter in his pleading goes to trial without requiring an issue to-be formed upon such pleading, he can not afterwards ask judgment in his favor as by confession. Bass v. Smith, 61 Ind. 72; Lewis v. Bortsfield, 75 Ind. 390; Felger v. Etzell, 75 Ind. 417 ; Stribling v. Brougher, 79 Ind. 328.
It is unnecessary to set out any more of the special interrogatories and answers of the jury, since there is nothing in any of the answers in question inconsistent with the facts as stated in the original opinion.
The petition for a rehearing is overruled.
Filed Sept. 25, 1886.