Embden State Bank v. Schulze

• Decision Date: 08 May 1923
• Citation: 193 N.W. 481,49 N.D. 777
• Parties: EMBDEN STATE BANK v. SCHULZE.
• Court: North Dakota Supreme Court

49 N.D. 777

193 N.W. 481

EMBDEN STATE BANK

v.SCHULZE.

Supreme Court of North Dakota.

April 21, 1923.

Rehearing Denied May 8, 1923.

Syllabus by the Court.

Where the notice of appeal from a judgment, undertaking, and specifications of errors are served on the respondent and filed with the clerk of the district court more than six months after the notice of entry of judgment, and motion is made to dismiss the appeal from such judgment upon the ground that it is not timely made, under section 7820, C. L. 1913, such motion must be granted.

When the order of the trial court denying motion for judgment notwithstanding the verdict,or for a new trial, is served on the adverse party by mail, the time within which an appeal may be taken therefrom, which is 60 days, under section 7820, C. L. 1913, is doubled, as provided in section 7954, C. L. 1913, following More v. Western Grain Co., 31 N. D. 369, 377, 153 N. W. 976.

Mere possession of a promissory note, payable to order, does not entitle the holder to enforce it against the maker without proof of indorsement, or transfer by the payee, if such indorsement and transfer are denied by the maker, although a purported indorsement appears on the back of the instrument. In such a case the duty devolves upon the plaintiff to prove title to the note; and if such indorsement is made by an agent or employee of the payee, the plaintiff must prove the authority of the agent to transfer title by indorsement.

Mere possession of a promissory note by an agent of the payee gives rise to no presumption of authority in such agent to indorse such paper so as to transfer title thereto. Authority in an agent to indorse negotiable instruments will not be implied from the fact of agency, unless it be necessary in order to carry out the express authority conferred on the agent by his principal.

The testimony of the cashier of the plaintiff to the effect that before the note in suit was indorsed to the plaintiff bank, he talked with the president of the payee, and was advised by the president of the payee that the person who had possession of the note in suit had authority to indorse notes belonging to the payee, is hearsay and incompetent upon the question of authority of the agent to transfer title by indorsement, and, if properly objected to, should be excluded.

Where counsel specifically objects to testimony on the ground that it is hearsay, and later objection to the same line of testimony is made on the ground that it is incompetent, irrelevant, and immaterial, it is held, for reasons stated in the opinion, that the general objection is sufficient.

Where incompetent testimony is admitted over objection, and where counsel thereafter cross-examines the witness upon the same matter, the objection is not waived.

Where evidence is properly objected to, the objection need not be repeated when other evidence of the same class is offered.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by the Embden State Bank against A. W. Schulze. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Appeal from judgment dismissed, and, on appeal from order, order reversed and cause remanded.

W. J. Courtney, of Page, for appellant.

A. C. Lacy, of Fargo, for respondent.

JOHNSON, J.

This is an appeal from a judgment and from an order denying a motion for a new trial.

At the outset we are confronted with a motion by the respondent to dismiss this appeal upon two grounds: First, that the appeal was not perfected within the statutory time; and, second, that the undertaking of the appellant is insufficient.

The judgment was docketed on February 1, 1922, and personal service of notice of entry of judgment was made and admitted on February 1, 1922. On February 11, 1922, a motion for a new trial was argued before the trial court and was on that date fully submitted. The trial court held this under advisement for over six months and until September 1, when the order denying the motion for a new trial was made. This order was served on the defendant and appellant by mail on September 1, 1922, and on that date the affidavit of mailing was filed. Notice of appeal from the judgment and the order, bond, and specifications of errors were personally served upon the respondent's counsel November 3, and were filed in the office of the clerk of the district court on November 6, 1922.

[1] It is clear that the appeal from the judgment was not perfected within six months, the time prescribed in section 7820, C. L. 1913, and that the motion to dismiss the appeal from the judgment must, therefore, be granted.

[2] With reference to the motion to dismiss the appeal from the order of the trial court denying the motion for new trial, a different question arises. This motion was made and fully submitted before the trial court lost jurisdiction over the judgment. The defendant had 60 days to appeal from this order (section 7820, C. L. 1913) unless, because of service of the order and the notice of the making of the same by mail, the respondent became entitled to double time under section 7954. In the case at bar, unless the appellant is entitled to double time within which to appeal from the order of the trial court, the appeal is not timely taken, and the motion to dismiss the same must be granted.

Section 7954 provides as follows:

“When the service is by mail it shall be double the time required in cases of personal service, except service of notice of trial which may be made sixteen days before the day of trial including the day of service.”

We believe that this question has been settled in this jurisdiction against respondent's contention. It is true that the Supreme Court of South Dakota, in Landstad v. McClellan, 42 S. D. 263, 173 N. W. 747, has held that service of notice of the making of such an order by mail does not double the time within which to appeal therefrom. This court, however, arrived at a contrary conclusion in More v. Western Grain Co., 31 N. D. 369, 377, 153 N. W. 976. The construction put upon section 7954 in that case is the same as the New York court put upon an identical section of the New York Code-our section 7954, C. L. 1913, was adopted from New York-in Dorlon v. Lewis, 7 How. Prac. 132.

The grounds on which the sufficiency of the undertaking is challenged have been removed by the appellant who, with the permission of this court, has filed a new and amended undertaking which conforms with the statute. The objection made to the amended undertaking is without merit. A single undertaking is sufficient on an appeal from a final judgment and from an order denying a motion for a new trial, and in the instant case the undertaking is given on appeal from both and specifically refers to both. Sucker State Drill Co. v. Brock et al., 18 N. D. 598, 120 N. W. 757.

The motion to dismiss the appeal from the order denying the motion for a new trial must be denied.

This is an action brought by the endorsee of a promissory note. The complaint is in the usual form. The plaintiff and respondent alleges that it received this note as endorsee of the payee for value, before maturity, and without notice or knowledge of any defense thereto. The note was dated December 27, 1919, made payable to the Grain Belt Manufacturing Company, a corporation, as payee, and was signed by the defendant and appellant, A. W. Schulze. The note is given for the sum of $1,750 with interest at the rate of 8 per cent. per annum and due one year after date. The note was given in connection with a stock and tractor agency contract, signed by the maker of the note at the time the note was made (Exhibit 100 in the case), and recited that the maker of the note had the right to cancel the contract within a specified time from the date of the contract. The following is written in longhand at the bottom of the agreement:

“The above note for $1,750.00 is to be held and returned in the event of cancellation of the contract within one year.” This is signed, “Wm. Crowley.”

The defendant, Schulze, wrote the payee in the note, the Grain Belt Manufacturing Company, on December 29, 1919, canceling the contract and asking that the note in suit be sent to a bank at Casselton. The registry return receipt shows that this letter was received by the payee named in the note on December 30, 1919. The plaintiff and respondent alleges, and the evidence shows, that it purchased the note on December 30, 1919.

The answer of the defendant and appellant admits the making of a note of about the date mentioned in the complaint, but denies the negotiation and indorsement thereof. The answer is in the form of a general denial, coupled with which are specific denials of matters of fact, as if such matters of fact had been alleged in the complaint. This part of the answer is in the following form:

“Defendant admits making a note of about the date mentioned in the said complaint, but denies that it was ever delivered to the Grain Belt Manufacturing Company, and denies that the said company ever had such note delivered to them, or were ever in legal possession of or owners of said note, for the purpose of collection, sale, or transfer, or that they were ever the holders of said note for any purpose, other than to turn back to this defendant.

Defendant denies that the plaintiff purchased the said note before maturity, or at all for value, and denies specifically that the said plaintiff is an innocent purchaser in good faith, and denies that the plaintiff is the owner of said note.”

In point of fact, no such specific allegations as those italicised in the denials above appear in the complaint, and it is doubtful if the answer, properly construed, is more than a general denial, coupled with a specific admission of the making of a note similar to the one in suit. Whether or not the answer alleges affirmative defenses sufficiently to entitle the appellant to introduce evidence thereof at the trial is not necessary at this...