Iowa State Savings Bank v. Henry

• Decision Date: 09 December 1913
• Docket Number: 749
• Citation: 136 P. 863,22 Wyo. 189
• Parties: IOWA STATE SAVINGS BANK v. HENRY ET AL
• Court: Wyoming Supreme Court

136 P. 863

22 Wyo. 189

IOWA STATE SAVINGS BANK v. HENRY ET AL

No. 749

Supreme Court of Wyoming

December 9, 1913

ERROR to the District Court, Uinta County; HON. DAVID H. CRAIG Judge.

The action was brought by the Iowa State Savings Bank, a corporation, against Joseph Henry and others. There was a verdict and judgment for the defendants and the plaintiff brought error. The material facts are stated in the opinion.

Affirmed.

R. S Spence and T. L. Glenn, for plaintiff in error.

The notes sued on were negotiable instruments. (Cudahay Pack Co. v. Bank, 134 F. 538; Crawford's Neg. Inst. Law, (2nd Ed.) Sec. 320; Trust Co. v. Long, 120 P. 291; Bank v. Buttery, 17 Ann. Cas. 52; Bank v. Kinney, 83 S.W. 368; Bank v. Dolson, (Cal.) 126 P. 153; Randolph on Com. Paper, Secs. 111-113; Comp. Stat. 1910, Sec. 3163; Bank v. Bilstad, 136 N.W. 205; Charlton v. Reed, 61 Ia. 166, 16 N.W. 64; Walker v. Woolen, 54 Ind. 164; Cizne v. Chidester, 85 Ill. 524; Wilson v. Campbell, 110 Mich. 580, 68 N.W. 278; Joseph v. Catron, 13 N. M. 202, 31 P. 439; Mo. &c. Co. v. Long, (Okl.) 120 P. 291; Cunningham v. McDonald, 98 Tex. 316, 83 S.W. 372; DeGroat v. Focht, 131 P. 172; Bank v. Loukonen, 127 P. 947; Stitzel v. Miller, 95 N.E. 53). When the court ruled that the notes were non-negotiable then, of course, the defense pleaded was admissible. But the evidence was insufficient, even under those circumstances, to justify the verdict.

P. W. Spaulding, for defendant in error.

Several of the assignments of error cannot be considered except it appears that they were properly brought to the attention of the trial court by motion for new trial. (Comp. Stat. 1910, Secs. 4601, 4604; Rule 13, Supreme Court; Seng v. State, (Wyo.) 122 P. 631). Other assignments of error are not referred to in the brief and are therefore waived. This leaves but one assignment of error to be considered, viz: the denial of the motion for new trial. The third and fourth grounds stated in the motion for new trial should not have been considered by the trial court and cannot be here considered for the reason that they are insufficiently stated. (Dickerson v. State, 18 Wyo. 440, 111 P. 863, 116 P. 451; Seng v. State, 122 P. 631). The objection to the instructions was not brought to the attention of the District Court by the motion for new trial. The notes sued on are not negotiable. (Bank v. Heslitt, (Kan.) 113 P. 1052; Bank v. Gunter, 72 P. 842; Bank v. Bolan, (Ida.) 93 P. 508; Woodbury v. Roberts, 59 Ia. 348, 13 N.W. 312; Stitzell v. Miller, 250 Ill. 72, 95 N.E. 53, 34 L. R. A. (N. S.) 1006). The bill of exceptions is insufficient to show that all of the evidence is contained in the bill, and hence the error assigned upon the sufficiency of the evidence cannot be considered.

SCOTT, CHIEF JUSTICE. BEARD, J., concurs. POTTER, J., being ill, did not sit.

OPINION

SCOTT, CHIEF JUSTICE.

This action was brought in the District Court of Uinta county by the plaintiff in error as plaintiff against Joseph Henry and others as defendants to recover as endorsee on two several promissory notes and interest thereon. The case was tried to a jury which found for and returned a verdict in favor of the defendants and the plaintiff brings the case here on error.

The answer consisted of an answer and counter-claim to which plaintiff filed a demurrer upon the grounds, first: "That the answer does not state facts sufficient to constitute a defense," and second: "That the alleged counter-claim does not state facts sufficient to constitute a cause of action." The court overruled this demurrer and such ruling is here assigned as error.

The petition contains two causes of action upon separate promissory notes, each dated April 18, 1908, signed, executed and delivered by the defendants to C. H. Hurd, whereby for value received they promised to pay $ 875.00 on or before April 18, 1909, and $ 875.00 on or before April 18, 1910, respectively, with interest at 8 per cent. per annum until paid, payable at the First National Bank of Evanston, Wyoming, and it is alleged for a valuable consideration before maturity both notes were endorsed to plaintiff. The answer alleged that the notes were executed and delivered in payment for a stallion sold to defendants upon false representations and guaranty that had failed as to said stallion and denied that plaintiff was an innocent holder, but took the notes with knowledge of the transaction, fraud and false representation by which they were obtained. We think the answer stated facts sufficient to constitute a defense and that the demurrer was properly overruled.

A motion to strike out the answer and counter-claim was made which the court overruled. This ruling is assigned as error. It will be observed that this motion is not directed to different parts of the answer but to the answer as a whole. We have already held that the answer did state facts sufficient to constitute a defense and to strike out the answer in its entirety would manifestly be unjust. This motion was properly denied.

It is assigned as error that the court erred in overruling the motion for a new trial. Omitting the caption and signatures the motion is in words and figures as follows: "Comes now the plaintiff in the above entitled action and moves the court to set aside the verdict of the jury, for the following reasons, to-wit:

For the following irregularities:

1. --Insufficiency of the evidence to justify the verdict of the jury.

2. --That said verdict of the jury is contrary to law:

3. --Errors of law occurring at the trial and excepted to by the plaintiff:

4. --And for other manifest errors apparent upon the face of the record."

The third and fourth grounds of this motion are each insufficiently stated and for that reason did not definitely direct the court's attention to the cause of complaint. (C. B. & Q. R. Co. v. Morris, 16 Wyo. 308, 93 P. 664; Wilson v. O'Brien, 1 Wyo. 42; Boburg v. Prahl et al., 3 Wyo. 325, 23 P. 70). It was said by this court in Dickerson v. State, 18 Wyo. 440, 111 P. 857, 116 P. 448, that "It has been uniformly held by this court that such a specification is too general and indefinite to show that the question was brought directly to the attention of the court below."

The first and second grounds of the motion, to-wit: that the evidence is...