Reed v. First Nat. Bank of Pueblo

• Decision Date: 18 January 1897
• Citation: 48 P. 507,23 Colo. 380
• Parties: REED et al. v. FIRST NAT. BANK OF PUEBLO.
• Court: Colorado Supreme Court

48 P. 507

23 Colo. 380

REED et al. v. FIRST NAT. BANK OF PUEBLO.

Supreme Court of Colorado

January 18, 1897

Appeal from district court, Pueblo county.

Action by the First National Bank of Pueblo against Hubbard W. Reed William Weston, and others, on a note. Judgment for plaintiff, from which defendants Reed and Weston appeal. Affirmed.

This is an action upon a negotiable promissory note, against five of the joint makers, only two of whom (Reed and Weston) made any defense. The complaint alleges ownership by plaintiff maturity and nonpayment of the note. The answer has four defenses. The first is a denial of plaintiff's ownership and a denial of nonpayment. The second, a plea of payment. The third, that these two defendants were accommodation makers, merely, without consideration, and that plaintiff acquired its interest in the note after its maturity. The fourth pleaded want of consideration, and that, as between the co-makers of the note, the defendant Hartwell, one of the makers, agreed to pay it. A replication was filed, and the case went to trial before a jury, which returned a verdict for the plaintiff for the amount of the note, less the payments theretofore made, upon which was entered a judgment from which the defendants Reed and Weston have appealed.

Chas. H. Toll, John M. Waldron, and W. R. Barbour, for appellants.

Chas. E. Gast, for appellee.

CAMPBELL J. (after stating the facts).

Twenty-seven errors have been assigned. One relates to the refusal of the court to change the place of the trial; 17, to rulings by the court upon the admission and rejection of testimony; 2 go to the instructions; and the others to the overruling of the defendants' motion for a nonsuit, for a new trial, and to the insufficiency of the evidence. In their argument, counsel for appellants characterize the trial of this case as one so disorderly as to warrant this court in reversing the judgment for that reason alone. Whether or not we agree with counsel for appellee that the turbulent conduct of the defendants' attorneys made it difficult for the judge to preserve that decorum which should attend trials in courts of justice is immaterial; for we do not consider the departure from the usual practice so flagrant as to justify a reversal. We may say, however, that the method adopted by the defendants' counsel during the trial was rather unusual. Counsel should be diligent in protecting his client's interests. It is not impossible, of course, but scarcely probable, that every question propounded by plaintiff's counsel was improper, and every ruling of the trial court thereon incorrect; yet this record discloses that nearly every such question was objected to, and that to nearly every ruling upon the testimony, and almost every other ruling against them throughout the trial, exceptions were taken. Some of the objections bordered upon captiousness, while others are meritorious, and these we proceed to consider.

1. The note was executed in Ouray county, and was made payable in Arapahoe county, Colo. When the action was instituted in the district court of Pueblo county, that was the residence of the plaintiff. The defendant Reed resided in Ouray, and Weston in Arapahoe, county. At the time of filing the answer the defendants asked that the cause be removed for trial to the district court of Arapahoe county, upon the sole ground that the note was made payable there. This motion was based upon an affidavit and the pleadings in the case. A counter motion by the plaintiff was filed, supported by affidavit, asking that the cause be retained on the ground of convenience of witnesses. It will be observed that the defendants did not ask to have the venue changed to the county of their residence, or the residence of either of them, and there was no showing where the summons was served; so that phase of the venue statute is not before us. But the application was based solely upon that provision of section 27 of the Civil Code which provides that actions upon notes 'may' be tried in the county where the same are made payable. Upon this ground the defendants did not have the absolute right to a change of venue, but, at best, only a privilege that may be waived. Fletcher v. Stowell, 17 Colo. 94, 28 P. 326. The court therefore had jurisdiction of the action, and of the motion for change of the venue. Its order denying the same was not improper, under the showing made, irrespective of the merits of the plaintiff's counter application, and we affirm the ruling for that reason. Law v. Brinker, 6 Colo. 555; Thomas v. Bank, 11 Colo. 511, 19 P. 501; De Wein v. Osborn, 12 Colo. 407, 21 P. 189; Newell v. Giggey, 13 Colo. 16, 21 P. 904.

2. In its instructions to the jury the court eliminated all questions except ownership and payment; for the practical withdrawal from the jury of the third and fourth defenses left only these to be determined. This ruling of the court is complained of, on the ground that there was...