First Nat. Bank v. Jones

• Decision Date: 07 September 1894
• Citation: 37 P. 824,2 Okla. 353,1894 OK 21
• Parties: FIRST NAT. BANK OF ARKANSAS CITY v. JONES et ux.
• Court: Oklahoma Supreme Court

37 P. 824

2 Okla. 353, 1894 OK 21

FIRST NAT. BANK OF ARKANSAS CITY v. JONES et ux.

Supreme Court of Oklahoma

September 7, 1894

Syllabus by the Court.

1. Where a written instrument is the foundation of a civil action, the original, or a copy thereof, should be filed as an exhibit to the pleading, and in case of variance between the pleading and the exhibit the exhibit must control. The instrument is held to be a part of the complain t and a failure to file the original, or a copy thereof, is fatal to the case on demurrer.

2. In this case there is a fatal variance between the pleadings and the exhibit, and the demurrer should have been sustained.

Appeal from district court, Kingfisher county; before Justice John H. Burford.

Action by the First National Bank of Arkansas City, Kan., against James Jones and wife, on a promissory note, and to foreclose a mortgage. Judgment for plaintiff. Defendants appeal. Reversed.

T. G Cutlip, for appellants.

Noffsinger & Nagle, for appellee.

SCOTT J.

On the 21st day of October, 1892, the First National Bank of Arkansas City, Kan., filed its complaint in the district court of Kingfisher county against James Jones and Nancy A Jones, containing allegations as follows: "That on the 25th day of June, 1891, by their promissory note, a copy of which is filed herewith and made a part of this complaint promised to pay to A. V. Alexander the sum of $944.04 six months thereafter, with interest from date at the rate of ten per cent. per annum, payable at the First National Bank of Arkansas City, Kan.; that on the ___ day of ___ A. V. Alexander indorsed said note to H. P. Farrar, as cashier of the First National Bank of Arkansas City, for the use and benefit of said bank, and said bank is now the legal holder of said note; that on the 25th day of June, 1891, to secure the payment of said note, the defendants executed to A. V. Alexander their mortgage, a copy of which is filed herewith and made a part of this complaint; that said mortgage was executed to secure the payment of the aforesaid note; that there is now due and unpaid on aforesaid note the sum of $862.32 Wherefore, plaintiff demands judgment for $862.32, and asks that said mortgage be foreclosed, and the real estate described therein, or such part thereof as may be necessary to secure plaintiff's claim and costs, be sold for that purpose, and for all other proper relief." To this complaint is attached the following exhibit: "944.04. Arkansas City, Kansas, June 25th, 1891. Six months after date, for value received, I promise to pay to the order of A. V. Alexander nine hundred forty-four & 04/100 dollars, with interest from date at the rate of ten per cent. per annum, payable at the First National Bank of Arkansas City, Kansas, Due, ___. [Signed] James Jones. Nancy Jones." The mortgage was executed by James Jones and Nancy A. Jones to A. V. Alexander, and is the usual form of real-estate mortgages, and was at said time a valid lien against the real estate therein described.

On the 4th day of November, 1892, defendant Nancy A. Jones moved the court to set aside the service upon her, alleging several grounds. The court permitted the officer to amend his return, and the motion was overruled. Upon this question we think the court committed no error.

On the 5th day of November the defendants filed a demurrer, alleging the complaint of the plaintiff to be uncertain, indefinite, and insufficient, and not to contain facts sufficient to state a cause of action, and assigned as special grounds the following: "First, because the complaint does not show when the note sued on was indorsed to H. P. Farrar; second, because the complaint does not show that H. P. Farrar ever indorsed said note to the plaintiff; third, because the complaint does not show that said note was indorsed for a valuable consideration; fourth, because the copy of the said note filed herewith does not show any indorsement or credit; fifth, because said complaint does not show that the mortgage therein mentioned was ever delivered by defendant to said Alexander; sixth, because said complaint does not show that said mortgage was ever recorded; seventh, because said complaint does not show that demand for payment has ever been made on the defendants on said note." This demurrer the court overruled, to which defendants excepted. In considering the points raised in this case, the overruling of the demurrer is the only one, in the judgment of the court, necessary to discuss.

We think the demurrer should have been sustained. It will be observed that the complaint alleges that the note in question was assigned by A. V. Alexander, the payee thereof, to one H P. Farrar, as cashier, for the use and benefit of the First National Bank of Arkansas City; that a true copy of said note is filed with and made a part of said complaint. Upon examination of the note, it shows that it is payable to the order of A. V. Alexander, and contains no assignment or indorsement of any kind. There is a direct variance between the complaint and the exhibit, and the question arises, upon the consideration of the demurrer, which should control,--the exhibit or the complaint. This action was commenced while the Indiana Code was in force in Oklahoma, and the authorities in that state declare that the original instrument, or a copy thereof, pleaded, must...