On Petition foe a Rehearing.
Reinhard, J.Counsel for appellee has filed a petition for rehearing in this cause. In his brief he urges but one ground in support of the motion. He affirms that, since the decision in this cause, we have reversed the ruling by a contrary decision in the case of Scott v. Norris, 6 Ind. App. 102, S. C. 32 N. E. Rep. 332.
In the case at bar, we held that the immaturity of the note sued upon could only be raised by a plea in abatement. Counsel thinks that in the case cited the ruling was that the question must be presented by an answer in bar. Counsel is in error in so supposing. In the case last mentioned there was a plea in abatement, but, as it was based upon a cross action to reform the note, we held that the plea was insufficient for a failure to ask for a reformation of the instrument. There is no eonfiiet in the two cases. Nothing was farther from our minds than the intention of declaring that the question here in issue must be raised by an answer in bar. Counsel evidently confuses such an answer with a cross action in the nature of a bill to reform, upon which the matter in abatement in this cause was predicated. We still adhere to the rule declared in the principal opinion, and it is no wise infringed upon in Scott v. Norris, supra, that in a case like this, if the prematurity of the action is relied upon, it must be pleaded by an answer in abatement, and, we may add, if this can be made apparent only by facts involving a reformation of the note sued upon, the answer must contain a prayer for reformation.
Petition overruled.