Sackett v. Montgomery
| Decision Date | 19 January 1899 |
| Citation | 77 N.W. 1083,57 Neb. 424 |
| Parties | SACKETT v. MONTGOMERY. |
| Court | Nebraska Supreme Court |
1. A note payable to a party or order may be transferred by the payee without a commercial indorsement, but by either an oral, or a separate, distinct, written, assignment thereof, followed by delivery, which would render the transferee liable to any defenses against the original payee.
2. A former judgment on a note is not a defense to a subsequent action on the same note, where the judgment was void for want of jurisdiction over the person of the defendant.
Error to district court, Boone county; Adelbert A. Kendall, Judge.
Action by Milton Montgomery against F. M. Sackett. Judgment for plaintiff. Defendant brings error. Affirmed.Spear & Mack, for plaintiff in error.
H. C. Vail, Montgomery & Hall, and James S. Armstrong, for defendant in error.
Milton Montgomery sued F. M. Sackett, and obtained judgment against him, on a promissory note executed by the defendant and one John Dickenson, and payable to Montgomery & Jaycox, or order. Two defenses were presented, namely, that plaintiff was not the owner of the note, and that the payees had already obtained judgment against both makers for the full amount due thereon. Since the docketing of the cause in this court the death of the plaintiff below was suggested, and by agreement of parties an order was duly entered reviving the action in the name of his executors.
As to the ownership of the note, the evidence, without contradiction, shows that at the date of the institution of suit said Milton Montgomery was the owner of the paper, and on his behalf it was produced and introduced in evidence on the trial. The note was payable to the order of the payees, but did not contain their indorsement. This fact, however, did not prevent an equitable assignment of the paper to the decedent. A note payable to a party or order may be transferred by the payee without a commercial indorsement, but by either an oral, or a separate, distinct, written, assignment thereof, followed by delivery, which would render the transferee liable to any defenses against the original payee. Doll v. Hollenbeck, 19 Neb. 639, 28 N. W. 286;Colby v. Parker, 34 Neb. 510, 52 N. W. 693;Gaylord v. Bank, 54 Neb. 104, 74 N. W. 415;Marskey v. Turner, 81 Mich. 62, 45 N. W. 644;Benson v. Abbott (Ga.) 22 S. E. 127;Thomson-Houston Electric Co. v. Capitol Electric Co., 56 Fed. 849.
As to the plea of estoppel by...
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