Edney v. Willis
Decision Date | 05 January 1888 |
Citation | 36 N.W. 300,23 Neb. 56 |
Parties | W. D. EDNEY, PLAINTIFF IN ERROR, v. H. S. WILLIS ET AL., DEFENDANTS IN ERROR |
Court | Nebraska Supreme Court |
ERROR to the district court for Madison county. Tried below before CRAWFORD, J.
Judgment of the district court reversed, and judgment entered in favor of plaintiff.
Allen & Robinson, for plaintiff in error, cited: Knisely v Evans, 34 Ohio St. 161. Hollingsworth v Fitzgerald, 16 Neb. 496. Drake on Attachment, Secs. 582 592. Commissioners v. Fox, Morris (Iowa), 48. Fowler v. Doyle, 16 Iowa 536. Copeland v. Manton, 22 Ohio St. 404. Baxter v. Little, 6 Met., 7.
Brome, White & Mapes, for defendants in error, cited: McCoid v. Beatty, 12 Iowa 299. Davis v. Neligh, 7 Neb. 81. Walters v. Ins. Co., 1 Iowa 405. Scott v. Hawkins, 99 Mass. 550. Waples Attachment, 364-5. Campbell v. Nesbitt, 7 Neb. 300.
This is an action upon a promissory note, and was submitted to the court below upon the following stipulation of facts:
'$ 150.00 BLAKELY, NEB., Aug. 25th, 1883.
'H. S. WILLIS.
'GEORGE W. HONEYSETTE.'
The county court found for the defendants, which judgment was affirmed by the district court.
It will be seen that the stipulation admits that W. D. Edney became the owner of the note in question in May, 1885, and that the garnishment proceedings were instituted in the month of August following, but that no notice of such transfer was given to the maker of such note. The defendant in error contends that such notice was necessary in order to protect the holder as against payments made by the maker, and Davis v. Neligh, 7 Neb. 78, is cited to sustain that position. In that case Neligh gave one Leonard Kryger a promissory note, dated November 7, 1872, and due in two months from date. The pleadings and testimony showed that the real owner of the note was one John B. Thompson, that Kryger had no interest in the note whatever, but at the request of John B. Thompson endorsed the note payable to E. C. Thompson the wife of John B. Some time in February after the note became due, Neligh (the maker) saw the note in the hands of John B. Thompson, at that time it not being endorsed, and made payments on the note which were not endorsed thereon, Neligh seemingly trusting to Thompson's honor to make such endorsements. There was no claim that Davis was the holder of the notes until after these payments were made, nor proof that he was a bona fide purchaser. On page 83 it is said that Thompson had "received from Neligh the full amount of the note before Neligh had notice of the assignment to Davis." These words, however, must be construed with reference to the facts in that case, and were not intended to establish the rule that notice by the holder of an overdue note to the maker was necessary in order to protect the rights of such holder. In...
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