First Nat. Bank of Grant City v. Korn
| Decision Date | 01 November 1915 |
| Docket Number | 11705 |
| Citation | 179 S.W. 721 |
| Parties | FIRST NAT. BANK OF GRANT CITY v. KORN. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Worth County; Wm. C. Ellison, Judge.
“ Not to be officially published.”
Action by the First National Bank of Grant City against C. A. Korn. Judgment for plaintiff, and defendant appeals. Affirmed.
O. B Hudson, of Grant City, for appellant.
John Ewing and Kelso & Kelso, all of Grant City, for respondent.
Appellant, having a check drawn by Seasholtz & Scheller on the Kellerton State Bank of Kellerton, Iowa, indorsed and delivered it to the respondent bank, and received from it the proceeds thereof. On presentation to the Iowa bank payment was refused, and the check was protested and returned to respondent. Appellant declining to refund the money he had obtained, respondent brought this suit on appellant’s indorsement to recover the amount of said check, with interest and protest fees. The case originated in a justice court, and, after trial there, was appealed to the circuit court, where it was tried anew, resulting in a judgment for the bank, and the other party has appealed.
Respondent has a motion to dismiss the appeal because of the alleged failure of appellant to properly arrange and present the record herein. The chief ground of this motion is that appellant has not distinguished between matters to be shown by the record and matters which can only appear in the bill of exceptions. We are of the opinion, however, that while the appellant’s abstract is not in the usual stereotyped form, but is somewhat inartistic, and not as clear as it might be, yet nevertheless it is not so open to the objections made against it as to justify us in refusing to consider the case on its merits. The motion is therefore overruled.
Appellant says the petition or statement on which the case is based does not state a cause of action. No attack was made on the pleading in any way either before judgment or in the motion for new trial. Unless the petition is so defective as to wholly fail to state any cause of action at all, and, on that account, is wholly insufficient to support a judgment, said objection, made for the first time in the appellate court, cannot be regarded. The petition is not so defective as this. The alleged defects it is said to contain are not such as cause the petition to state no cause of action whatever, but, if they exist at all, merely show that a good cause of action exists, but that it has been stated imperfectly in some respects.
The chief grounds of appellant’s complaint relate to the admissibility and sufficiency of the notary’s certificate of protest.
With regard to the first objection thereto, it seems that the certificate of protest attached to the note and originally filed with the justice at the time of the institution of the suit, to wit, May 29, 1913, was not verified by his affidavit, as required by section 6329, R. S. Mo. 1909. The case went to trial in the justice court on July 5, 1913, and on that day, before trial, respondent filed another certificate of protest, which was duly verified. Inasmuch as section 6329 makes the certificate prima facie evidence provided it is filed in the cause 15 days before the trial thereof, appellant takes the position that it was not admissible in evidence on the trial of the case in the circuit court. This trial did not occur till February 19, 1914. The certificate, therefore, was filed more than 7 months before the trial in question here. The trial in the circuit court on appeal from a justice is de novo. The issues are investigated and determined as if that were the first time they were ever presented, and as if the trial in the justice court had never been. The object of the statute in requiring the certificate to be on file 15 days is to give the opposite party that much time in which to obtain evidence to overthrow the prima facie case presented by the certificate. The trial in the justice court was wholly supplanted by the trial in the circuit court, so that only the last trial is the one in which the opportunity of the parties to present evidence is finally closed. Consequently, appellant had at that trial vastly more time than the statute allowed him in which to refute the prima facie case made by the certificate. We think the object of the statute was fully met, and that the certificate was not inadmissible on that account.
Turning now to the objections made to the sufficiency of the certificate, it is urged that the certificate should be annexed to the check. There is nothing in the record to show that it was not. Both certificates refer to the "annexed check." Besides, section 10123, R. S. Mo. 1909, says it must be annexed to the bill, "or contain a copy thereof," and the verified certificate contained such copy.
Other objections are made to the sufficiency of the certificate. We have examined them all, and find they are without merit.
Section 10125, R. S. Mo. 1909, does provide that "protest must be made on the day of its dishonor, unless delay is excused." But the protest shows that the check was dishonored on March 17, 1913, and protested on same day. There is no showing to the contrary. The drawer of the check notified the Iowa bank on which it was drawn not to pay the check, for the reason that a horse for which the check was...
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