Quaker City Nat'l Bank v. Showaore.

• Decision Date: 27 June 1885
• Citation: 26 W.Va. 48
• Parties: Quaker City Nat'l Bank v. Showaore.
• Court: West Virginia Supreme Court

26 W.Va. 48

Quaker City Nat'l Bank

v.Showaore.

Supreme Court of Appeals of West Virginia.

Submitted June 4, 1885.

Decided June 27, 1885.

1. Where a plea or replication is allowed by the court and the record shows that the opposite party objected to the filing of the same, and that his objection was overruled, such party may have the question raised by such objection reviewed by the appellate court, although he did not except to the action of the court overruling such objection. (p. 50.)

2. A defendant files a plea under the provisions of the fifth section'of

chapter one hundred and twenty-six of the Code, and the plaintiff files a special replication thereto, in which he alleges facts, which if true would entitle him to a verdict; the defendant rejoins generally; a trial is had on this issue and a verdict is found for the plaintiff. Held:

That although said chapter of the Code provides, that every issue of fact upon-such plea shall be upon a general replication, yet if the defendant could not have been prejudiced by the allowance of said special replication, this Court will not reverse the judgment on the ground that it was improperly allowed. (p. 51.)

3. A note is dated at a specified place, which is stated on its face, and is

drawn in a form which makes it at such place a negotiable instrument. Held:

The maker, when sued on such note by an innocent holder for value, will not be permitted to aver or prove such note was not in fact made at the place it purports on its face to have been made. (p. 52.)

4. A paper purporting to be a bill of exceptions and copied into the

record as such will not be regarded or treated by the appellate court as a part of the record, unless the record shows that it was, by some order or memorandum entered on the order-book of the trial-court, made a part of tha record. (p. 53.)

The facts of the case are fully stated in the opinion of the Court.

McConnel &Meighen for plaintiff in error.

J. L. Parkinson for defendant in error.

Snyder, Judge:

Writ of error to the judgment ot the circuit court of Marshal county in an action of debt brought by the Quaker City National Bank against W. H. Showacre. The action is on a note for $500.00, which the declaration avers was made by the defendant at Bellaire in the State of Ohio, payable to the order of John Cree twelve months after date, and that before its maturity the same was endorsed to the plaintiff for value.

7 The defendant against the objection of the plaintiff was allowed to file several pleas under the statute alleging that the note was executed by him in the county of Marshall in this State and setting up as defences that the execution of the note was procured by fraud and that the consideration had wholly failed, &c. To these pleas the plaintiff tendered a special replication avering therein that the note upon its face shows that it was made and dated at Bellaire in the State of Ohio, that by the laws ot that State it is a negotiable instrument and as such was, before its maturity, endorsed to plaintiff for value without notice of any defect or that it was not in fact made in Ohio as it purported on its face; and that, therefore, the defendant is estopped to set up the defences alleged in his said pleas. The defendant objected to the filing of this replication, but the court permitted the same to be filed and the defendant rejoined generally thereto. A trial was had by jury and a verdict and judgment for the plaintiff, and the defendant obtained this writ of error.

It is alleged here that the court erred in overruling the defendant's objection to the filing of the said special replication. The plaintiff, however, insists that the defendant can not allege this as error in this Court, because he failed to except to the ruling in the court below.

It has been expressly decided by this Court, that a party may take advantage in the appellate court of an error committed by the trial-court in permitting a plea to be filed where the record shows that such party objected to the filing of such plea in the trial-court, and that he need not in such case take a bill of exceptions or except to the action of the court overruling his objection. Bank v. Kimber lands, 16 W. Va. 557; Perry v. Horn, 22 Id. 381.

This rule is equally applicable to the filing of a replication. In this case the defendant did object to the filing of the replication and he is, therefore, entitled to have the action of the trial-court as to that ruling reviewed by this Court.

The first objection is, that under the statute it was error to permit any special replication to be filed to said pleas. The pleas as before stated, set up defences allowed under the one hundred and twenty sixth chapter of the Code; and the sixth section of said chapter provides, that every issue of fact upon such pleas "shall be upon a general replication that the plea is not true and the plaintiff may give in evidence, on such issue, any matter which could be given in evidence under a special replication, if such replication were allowed." Code, p. 609.

In Douglass v. Central Land Co., 12 W. Va. 502, this Court decided that, "Though an issue be not made up on a special plea, yet if the evidence to sustain it was admissible under the general issue, and non assumpsit had been pleaded, the Court ought not to reverse a judgment on a verdict for such irregularity when all the evidence is certified and sustains the verdict. Upon such pleadings, f trough all the evidence had not been certified, yet if the plea be such that the plaintiff could reply no special matter without a departure from the allegations of his declaration, but could only take issue on the pleas, the non-joinder will be cured by the statute of jeofails after verdict." See also Bank v. Kimberlands, 16 W. Va. 555; Huffman v. Alder son, 9 Id. 616.

The special replication filed in this case did not put in issue any facts alleged in the pleas of the defendant, but it averred matter of estoppel, and it is not,...