Chapman v. Tallant

• Decision Date: 01 September 1895
• Citation: 42 P. 61,1 Kan.App. 799
• Parties: C. O. CHAPMAN et al. v. J. F. TALLANT
• Court: Kansas Court of Appeals

42 P. 61

1 Kan.App. 799

C. O. CHAPMAN et al. v. J. F. TALLANT

Court of Appeals of Kansas, Southern Department, Western Division

September 1, 1895

Opinion Filed October 23, 1895.

MEMORANDUM.--Error from Finney district court; A. J. ABBOTT judge. Action by J. F. Tallant against C. O. Chapman and H P. Myton on a promissory note. Judgment for plaintiff. Defendants bring the case to this court. Reversed. The material facts are stated in the opinion herein, filed October 23, 1895.

Judgment reversed and cause remanded.

A. J. Hoskinson, and M. A. Calhoun, for plaintiffs in error.

B. W. Lemert, and Milton Brown, for defendant in error.

COLE J. All the Judges concurring.

OPINION

COLE, J.:

J. F. Tallant brought his action in the district court of Finney county against C. O. Chapman and H. P. Myton upon a certain promissory note; the former being sued as principal, and the latter as indorser of said note. The petition, as finally amended, and upon which trial was had, alleged the execution of the note and the specific manner in which notice of non-payment was claimed to have been made upon Myton as such indorser. The defendant, Myton, interposed a general demurrer to said petition, the overruling of which is assigned as the first error in the case. The demurrer was promptly overruled. The petition in this case upon which the action was heard was certainly sufficient as against a demurrer. After the overruling of said demurrer, the defendant, Myton, filed his verified answer, which consisted of a general denial of each and every allegation in the petition, excepting that he signed the note sued upon upon the back thereof, as alleged in the petition. The defendant, Chapman, filed an unverified answer consisting of a general denial and of a special plea to the jurisdiction of the court, upon the ground that he was a nonresident of Finney county, Kansas, and was served with summons in Kearny county, and that none of the parties liable to an action on said note resided in Finney county, Kansas, at the time the action was commenced, and that none of the parties liable on said note was ever summoned in Finney county.

When this cause was called for trial a jury was impaneled to try the same, whereupon, as the record discloses, counsel for plaintiff and defendants stated their case to the jury, at which point a motion was made by plaintiff that the court direct the jury to return a verdict for plaintiff...