Klein v. German Nat. Bank

• Decision Date: 09 March 1901
• Citation: 61 S.W. 572
• Parties: KLEIN et al. v. GERMAN NAT. BANK.
• Court: Arkansas Supreme Court

61 S.W. 572

KLEIN et al. v. GERMAN NAT. BANK.

Supreme Court of Arkansas.

March 9, 1901.

Appeal from circuit court, Pulaski county; Joseph W. Martin, Judge.

Action by the German National Bank against E. F. Klein and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

The German Bank brought suit on the following note: "$15,000.00. Little Rock, Ark., May 28, 1895. Sixty days after date, for value received, we promise to pay to the order of Ed Hogaboom fifteen thousand dollars, at the German National Bank in Little Rock, Ark., with interest at 10 per cent. per annum from maturity until paid. The makers and indorsers of this note hereby severally waive presentment for payment, notice of nonpayment, and protest. The Park Hotel Company, Ed Hogaboom, President. Ed Hogaboom. E. F. Klein. C. C. Greenway. M. A. Eisele. Attest: E. F. Klein, Secretary. [Seal Park Hotel Co.]" This note was made on a printed form for a note used by the Citizens' Bank of Little Rock, but it appeared from the face of the note that the printed words "The Citizens' Bank" were stricken out, and the name of Ed Hogaboom inserted as payee. The printed words "at their office" were also stricken out, and the words "at the German National Bank" substituted, as the place of payment. The complaint alleged that the note had, for a valuable consideration, been transferred and indorsed before maturity by Hogaboom to the bank. Hogaboom filed no answer. The hotel denied that it executed the note. The defendants Klein, Greenway, and Eisele alleged in their answer that they signed the note as sureties for the accommodation of the Park Hotel Company only, and for the sole purpose of enabling that company to negotiate it and use the proceeds thereof; that Hogaboom wrongfully transferred the note to the bank as collateral security for the payment of his individual note to the bank for the sum of $10,000; and that of this the bank had notice. This answer was filed on the 10th of April, 1897. Afterwards, on the 24th of March, 1898, they filed an amendment to their answer, setting up that the defendants had, for the accommodation of the hotel company, executed the note to the Citizens' Bank, payable at the office of said bank, and that afterwards, without their knowledge or consent, the note had been altered so as to make it payable to Ed Hogaboom at the office of the German Bank. Three of the defendants filed an application for a change of venue, which the court overruled because the hotel company, another defendant, refused to join in the application. There was a judgment against Hogaboom for want of an answer. The presiding judge directed a verdict in favor of the hotel company on the ground that it did not authorize the execution of the note or receive the proceeds thereof. The jury found in favor of the plaintiffs against the other defendants for the sum of $8,082.50, and also found specially, in answer to an interrogatory propounded by the court, that the alterations on the note were made before the execution and delivery of the note to Hogaboom. Judgment was rendered accordingly, and the defendants Klein, Eisele, and Greenway appealed.

Greaves & Martin, Wood & Henderson, and Rose, Hemingway & Rose, for appellants. Ratcliffe & Fletcher, for appellee.

RIDDICK, J. (after stating the facts).

This is an action on a promissory note by the German Bank of Little Rock against the Park Hotel Company of Hot Springs and certain other parties residing there, who had joined in executing the note, and several questions are presented by the appeal.

On the question as to whether three of the defendants had the right to take a change of venue over the objection of another defendant who refused to join in such application, we are of the opinion that they did not have such right. Our statute directs that upon a change of venue being ordered in a civil action the papers in the case "shall be transmitted to the clerk of the court to which the venue is changed," thus showing that it was not intended that one defendant to a civil action should have the right to sever his case from the others, and take a change of venue, without removing the case as to all the defendants. There is no reason why the wishes of one defendant as to a change of venue should be given preference over others, and where defendants properly joined in an action against them differ as to the expediency of a change of venue, and some of them refuse to join in the application, it is not error for the court to overrule the application. The words in the statute, "any party to a civil action" may obtain a change of venue, do not mean that any individual defendant may obtain such order; but these words refer to the defendants as a class, and include all on that side. To be entitled to the change of venue, they must all join in or favor the application, with the exception, perhaps, of mere nominal or formal defendants having no real interest in that side. Wolcott v. Wolcott, 32 Wis. 63; Levy v. Martin, 48 Wis. 198, 4 N. W. 35; Whitaker v. Reynolds, 14 Bush, 616; Peters v. Banta, 120 Ind. 422, 22 N. E. 95.

The next contention is that the court erred in permitting the note to be read in evidence, without first requiring the alterations apparent on its face to be explained. It is said that this threw the burden of proof upon the defendants. But we do not concur in this contention. The burden of proof is on the plaintiff to make out his case, and to do this he must, of course, show that the defendants executed the note sued on; but, when he shows that the signatures to the instrument are those of the defendants, he has the right to introduce the instrument in evidence, and, if there be no further evidence, he has made out a case sufficient to go to the jury. "The view best supported by reason, and the one to which the authorities seem tending, is that the mere fact of an interlineation or erasure appearing in an instrument does not per se raise any presumption either for or against the validity of the writing; and the question when, by whom, and with what intent an alteration was made is one of fact, to be submitted to the jury upon the whole evidence." 2 Am. & Eng. Enc. Law (2d Ed.) 274; Gist v. Gans, 30 Ark. 285; Simpson v. Davis, 119 Mass. 269; Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 12 Am. St. Rep. 754, 4 L. R. A. 196; Willett v. Shepard, 34 Mich. 106; Stayner v. Joyce, 120 Ind. 99, 22 N. E. 89. This is, in substance, the rule already declared by this court. Gist v. Gans, supra. The introduction of the note, and proof of the signatures thereto, did not shift the burden of proof or put it upon the defendant, though, in the absence of rebutting evidence, this might have been sufficient to make out plaintiff's case. But in some of the instructions given at the request of plaintiff it seems to be...