McClintock v. State Bank of Table Rock

• Decision Date: 15 June 1897
• Citation: 52 Neb. 130,71 N.W. 978
• Parties: MCCLINTOCK ET AL. v. STATE BANK OF TABLE ROCK.
• Court: Nebraska Supreme Court

52 Neb. 130

71 N.W. 978

MCCLINTOCK ET AL.

v.STATE BANK OF TABLE ROCK.

Supreme Court of Nebraska.

June 15, 1897.

Syllabus by the Court.

1. The caption of a deposition may be read, in connection with the certificate at the end thereof, for the purpose of determining whether the deposition discloses that it was taken at the time and place, and before the officer, mentioned in the notice.

2. Where the defense to a suit on a promissory note is that the same had been materially altered after its execution and delivery,--the note itself not disclosing any evidence of such alteration,--the burden of proof is upon the party alleging such alteration to establish the same by a preponderance of the evidence.

Error to district court, Pawnee county; Babcock, Judge.

Action by the State Bank of Table Rock against Alexander McClintock and William McClintock. Judgment for plaintiff. Defendants bring error. Affirmed.Lindsay & Raper, for plaintiffs in error.

Story & Story, for defendant in error.

RAGAN, C.

Suit by an indorsee of a promissory note against the makers. Defense, that the note, after execution and delivery, without the knowledge and consent of the makers, was materially altered by inserting in blanks therein the figure “10” and the word “date,” making the note, which drew no interest when executed, draw interest at the rate of 10 per cent. per annum from date. Verdict and judgment for the indorsee, and the makers prosecute error.

The first assignment is that the court erred in not suppressing certain depositions taken and read on the trial in behalf of the plaintiff below. By the notice to take depositions served on the defendants below, they were informed that at a certain time and place the depositions of certain named witnesses would be taken before A. M. Keyes, a notary public of Furnas county, Neb. It is now insisted that the certificate of Keyes attached to the depositions taken does not disclose that he was a notary public of said county and state, and that the certificate does not show in what county or state he was holding and exercising the office of notary public. This assignment of error is entirely without merit. At the end of the depositions is the following: “I, A. M. Keyes, a notary public duly appointed, * * * do hereby certify * * * that the depositions * * * subscribed as above set forth * * * were reduced to writing by me, and in the presence of the witnesses, respectively, and were respectively subscribed by the said witnesses in my presence, and were taken at the office of A. M. Keyes, attorney at law in the city of Cambridge, Furnas county, Nebraska, at the time and place in the annexed notice specified. * * * In testimony whereof I have hereunto set my hand and official seal at Cambridge, Furnas county, Nebraska, this 24th day of October, 1893. A. M. Keyes, Notary...