Long v. Gwin, 601

CourtSupreme Court of Alabama
Writing for the CourtMAYFIELD, J.
Citation188 Ala. 196,66 So. 88
Decision Date30 June 1914
Docket Number601
PartiesLONG v. GWIN.

66 So. 88

188 Ala. 196

LONG
v.
GWIN.

No. 601

Supreme Court of Alabama

June 30, 1914


Appeal from City Court of Bessemer; James Trotter, Special Judge.

Action by M.M. Gwin against R.H. Long and others, upon a bill single or promissory note. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The seventh plea of defendant Long is as follows:

Plaintiff should not recover in this case against this defendant for that the instrument sued on was a negotiable instrument, and this defendant was, if liable at all, only liable as an indorser, and that said instrument was dishonored by nonpayment at maturity, and that notice of such dishonor was not given this defendant when said instrument was so dishonored, nor within the time required by law for such notice; therefore this defendant is discharged from liability on said instrument

Estes, Jones & Welch, of Bessemer, and William Milliken, of Birmingham, for appellants.

Pinkney Scott, of Bessemer, for appellee.

MAYFIELD, J.

Appellee sued appellant and a number of others on a written instrument, in form a promissory note, but in the complaint denominated a "bill single." With this exception the complaint is in Code form, for an action by the payee against the several makers of a promissory note.

Several of the defendants, alleged makers, were not served, and as to these the plaintiff discontinued, as is authorized by section 2502 of the Code. As to this there was no error nor injury of which this appellant can complain. The other defendants served, than Long, failed to appear and defend, and judgment by default was entered against them; and the case proceeded to trial as against defendant Long. It appears that some of these defendants, against whom judgment by default was rendered, had not been properly served, but as to this there was no reversible error nor error of which Long could complain.

This error can be corrected in the trial court on motion, or in this court, without remanding the cause, if the judgment can be otherwise affirmed, at the cost of the appellant. Neff v. Edwards, 81 Ala. 246, 2 So. 88.

There was no discontinuance of this cause by the taking of judgment by default against those who did not appear, and proceeding to trial as against the others.

In such case the judgment by default is, in its nature, interlocutory, to await disposition of the case as to the other defendants; and in this case it was made final when judgment was rendered against the other defendants. Brooks v. Maltbie, 4 Stew. & P. 96; Mobile Co. v. Smith, 51 Ala. 329; Neff v. Edwards, supra.

The defendant Long interposed several pleas, including that of non est factum; and demurrer was sustained as to all except the plea of non est factum.

Plea 7 presented a good defense to the instrument; that is, if the facts alleged in the plea were true, the defendant Long was not liable, though he had signed the instrument sued on.

The action is by the payee against the makers of a note. The complaint did show that plaintiff was a bona fide purchaser or holder of the instrument. The complaint shows an action only between the original parties to the contract sued on, and hence the defenses set up were availing to the defendant.

While the defendant is sued as a maker, the instrument on its face prima facie shows that the defendant is liable only as an indorser. Unless this prima facie presumption is rebutted, which may be done in this action, the plaintiff cannot recover.

The plaintiff in this action had the right to show that, although Long's name was signed on the back of the note, yet he was in fact liable as a maker, and signed the note as such and not as an indorser. On the other hand, the defendant had the right to show that he was not liable as maker, but liable, if at all, only as indorser.

It is made to appear in this case beyond dispute that defendant Long's signature to the note was on its back; and therefore he was prima facie indorser and...

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14 practice notes
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...plaintiff may recover such judgment as he may be entitled to against one or more of the defendants." The decision in Long v. Gwin, 188 Ala. 196, 66 So. 88 (assumpsit on note), was that approving the dismissal as to the parties not served, under section 5718, Code of 1923, or section 25......
  • Holczstein v. Bessemer Trust & Savings Bank, 6 Div. 778.
    • United States
    • Supreme Court of Alabama
    • May 14, 1931
    ...law permits him to plead and prove that he is in fact a mere accommodation indorser. In support of this contention he cites Long v. Gwin, 188 Ala. 196, 66 So. 88; Hall v. First Bank of Crossville, 196 Ala. 627, 72 So. 171; Smith et al. v. Pitts, 167 Ala. 461, 52 So. 402; Jackson et al. v. W......
  • Crawford v. Mills, 4 Div. 803
    • United States
    • Supreme Court of Alabama
    • June 29, 1918
    ...Evans Marble Co. v. McDonald & Co., 142 Ala. 130, 37 So. 830; Ashby Brick Co. v. Walker Co., 151 Ala. 272, 44 So. 96; Long v. Gwin, 188 Ala. 196, 66 So. 88; Beecher v. Henderson, 4 Ala.App. 543, 58 So. 805; King v. Gibbs, 12 Ala.App. 504, 67 So. 757; Plunkett v. Dendy, 197 Ala. 262, 72 ......
  • First State Bank of Laramie v. Rock Creek Producers Oil Company, 1243
    • United States
    • United States State Supreme Court of Wyoming
    • March 30, 1926
    ...(Mo.) 210 S.W. 1; Rockfield v. Bank, (Ohio) 83 N.E. 392; failure of notice of dishonor discharges the indorser; Long v. Gwin, (Ala.) 66 So. 88; Gresham v. Bank, (Miss.) 95 So. 65; Hall v. Crane, (Mass.) 100 N.E. 554. C. V. Garnett, for respondent, Sullivan. It is conceded that the provision......
  • Request a trial to view additional results
14 cases
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...plaintiff may recover such judgment as he may be entitled to against one or more of the defendants." The decision in Long v. Gwin, 188 Ala. 196, 66 So. 88 (assumpsit on note), was that approving the dismissal as to the parties not served, under section 5718, Code of 1923, or section 25......
  • Holczstein v. Bessemer Trust & Savings Bank, 6 Div. 778.
    • United States
    • Supreme Court of Alabama
    • May 14, 1931
    ...law permits him to plead and prove that he is in fact a mere accommodation indorser. In support of this contention he cites Long v. Gwin, 188 Ala. 196, 66 So. 88; Hall v. First Bank of Crossville, 196 Ala. 627, 72 So. 171; Smith et al. v. Pitts, 167 Ala. 461, 52 So. 402; Jackson et al. v. W......
  • Crawford v. Mills, 4 Div. 803
    • United States
    • Supreme Court of Alabama
    • June 29, 1918
    ...Evans Marble Co. v. McDonald & Co., 142 Ala. 130, 37 So. 830; Ashby Brick Co. v. Walker Co., 151 Ala. 272, 44 So. 96; Long v. Gwin, 188 Ala. 196, 66 So. 88; Beecher v. Henderson, 4 Ala.App. 543, 58 So. 805; King v. Gibbs, 12 Ala.App. 504, 67 So. 757; Plunkett v. Dendy, 197 Ala. 262, 72 ......
  • First State Bank of Laramie v. Rock Creek Producers Oil Company, 1243
    • United States
    • United States State Supreme Court of Wyoming
    • March 30, 1926
    ...(Mo.) 210 S.W. 1; Rockfield v. Bank, (Ohio) 83 N.E. 392; failure of notice of dishonor discharges the indorser; Long v. Gwin, (Ala.) 66 So. 88; Gresham v. Bank, (Miss.) 95 So. 65; Hall v. Crane, (Mass.) 100 N.E. 554. C. V. Garnett, for respondent, Sullivan. It is conceded that the provision......
  • Request a trial to view additional results

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