Jordan v. Long
| Decision Date | 29 January 1896 |
| Parties | JORDAN v. LONG. [1] |
| Court | Alabama Supreme Court |
Appeal from circuit court, Lauderdale county; John B. Tally, Judge.
Action by John S. Long against C. E. Jordan. There was a judgment for plaintiff, and defendant appeals. Reversed.
This was an action brought by J. S. Long, the appellee, against the appellant, and counted upon a promissory note which had been indorsed by the defendant. The facts showing the rulings of the court upon the pleadings are sufficiently stated in the opinion. The plaintiff introduced in evidence the note sued upon, and the indorsements thereon, and the certificate of protest of the notary public attached thereto. The certificate of protest was in due form, and shows, in the body thereof, that notice was given to certain named indorsers of the note. After the signature of the notary public, and immediately under his official seal, there is an addendum to the certificate signed by the notary, in these words: "Delivered notice in person to C. E. Jordan Florence, Alabama,"-and a similar statement in reference to the F. H. Foster Manufacturing Company, and to W. J Flanigan, another indorser of the note. The defendant objected to the certificate of protest being introduced in evidence, on the grounds-First, that it does not appear from such certificate that notice was given this defendant second, said notary does not certify under his hand and the seal of his office that notice was given this defendant; and third, because the statement of the notary as to notice given the defendant was made as an addendum to such certificate of protest, and does not show when such notice was given. The court overruled the objection to the introduction of the certificate of protest in evidence, and to this ruling the defendant duly excepted. The court, at the request of the plaintiff, gave the general affirmative charge in his favor, and to the giving of this charge the defendant duly excepted. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the rulings of the trial court upon the pleadings and the evidence.
Simpson & Jones, for appellant.
Emmet O'Neal, for appellee.
This is an action by Long, as indorsee, against Jordan, as an indorser, of a promissory note made by the F. H. Foster Manufacturing Company, a corporation payable to F. H. Foster, and indorsed by said Foster, W. J. Flanigan, S. S. Pancoast, A. J. McGarry, and Jordan, the defendant, to the plaintiff. The complaint contains two counts. In the first it is alleged, inter alia, "that said note and indorsement contained a waiver of all exemptions of property, real and personal, exempt from levy and sale under execution, or other legal process, under the laws and constitution of the state of Alabama." The second count alleges, in this connection, that said note "contains a waiver by said defendant of all exemptions of all property exempt to him from levy and sale under execution, or other legal process, under the constitution and laws of the state of Alabama." The defendant interposed a verified plea to the complaint, averring "that the contract sued on has been altered by some of the owners or holders thereof since the same was signed and delivered by this defendant, in this: that the following words have been written over the indorsement of this defendant, namely, 'The undersigned indorsers waive all exemptions under the laws of Alabama;' and the defendant avers that the said words were written over the indorsement of this defendant after the same was signed and delivered by this defendant, that this defendant indorsed the contract sued on in blank, and that said alteration, by the insertion of said words over the signature of this defendant and the other indorsers on said note, was made without the knowledge or consent of this defendant." Plaintiff demurred to this plea, assigning several grounds All of these assignments are emasculated by the words of the plea itself, except that numbered 2, which is as follows: "That said plea shows on its face that the alteration set forth and alleged therein, if any was made in said instrument, in the indorsement thereof, was not in any material particular, or had the effect to change, or in any respect vary, the legal operation and effect of said indorsement of said instrument by the defendant, or his liability thereon and therefor, and that the liability of the defendant as...
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