Bank of Piedmont v. Smith

• Decision Date: 29 October 1898
• Citation: 24 So. 589,119 Ala. 57
• Parties: BANK OF PIEDMONT v. SMITH.
• Court: Alabama Supreme Court

24 So. 589

119 Ala. 57

BANK OF PIEDMONT v. SMITH.

Supreme Court of Alabama

October 29, 1898

Appeal from city court of Anniston; James W. Lapsley, Judge.

Action by the Bank of Piedmont against A. L. Smith. There was a judgment for defendant, and plaintiff appeals. Affirmed.

D. C. Blackwell and John B. Knox, for appellant.

Matthews & Whiteside, for appellee.

COLEMAN, J.

The declaration indicates that the cause of action is a simple promissory note. It describes the note as payable to the Piedmont Land & Improvement Company, and avers that it is the property of the plaintiff. It is nowhere averred that the note was indorsed or assigned by the payee. The defendant, by sworn plea, denied that the note sued upon was the property of the plaintiff at the commencement of the suit. Issue was joined upon the plea, and the cause tried by the court without the intervention of a jury. The court found the issue for the defendant, and rendered judgment accordingly. The statute which prescribes that certain actions must be prosecuted in the name of the party really interested, whether he has the legal title or not, expressly excepts notes payable at a designated place, and provides that actions upon such instruments must be instituted in the name of the person having the legal title. Code 1896, § 28. The issue raised by the pleadings did not raise the question as to whether the legal title was in the plaintiff, but whether the note was the property of the plaintiff. The uncontroverted facts are: That the payee of the note indorsed it in blank, and that it was delivered to the plaintiff in payment of a debt. The note thereby became the property of the plaintiff. Subsequently, the plaintiff, while thus holding and owning the note, delivered it to the Iron Belt Mercantile Company, as collateral security, to secure a debt owing by the plaintiff bank to said Iron Belt Mercantile Company. That the debt for which the note sued upon was held as collateral had not been paid. That the Iron Belt Mercantile Company had not "retransferred" the note to plaintiff, nor "had it released its claim on the note sued on as collateral." These are the uncontroverted facts. We find no escape from the conclusion reached by the trial court that the note was not the property of the plaintiff. Affirmed.