Scarbrough v. City Nat. Bank

• Decision Date: 17 December 1908
• Citation: 157 Ala. 577,48 So. 62
• Parties: SCARBROUGH v. CITY NAT. BANK.
• Court: Alabama Supreme Court

48 So. 62

157 Ala. 577

SCARBROUGH v. CITY NAT. BANK.

Supreme Court of Alabama

December 17, 1908

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by the City National Bank against Eba Scarbrough and another. From a judgment for plaintiff, defendant Scarbrough appealed. Modified and affirmed.

Count 1 of the complaint was against the defendant Gus Woodruff, and contained a claim for attorney's fees and a declaration of waiver of exemptions, with the averment that the note was executed by the defendant Gus Woodruff to one James Keith Jr., and was by him for a valuable consideration transferred to the City National Bank. The second count claimed of the defendant Eba Scarbrough $100 due by note executed by Gus Woodruff, with the averment that said defendant Eba Scarbrough indorsed said note, and that demand for same had been made on Gus Woodruff, one of defendants herein and principal on said note, and payment had been refused, of which demand for payment and refusal to pay said defendant Scarbrough had had notice. Then follow claims for attorney's fees and a declaration of waiver of exemptions as to personal property and a proper transfer of the note from payee to present plaintiff. Count 3 is against Eba Scarbrough, and is exactly like count 2, except that no declaration as to the waiver of exemptions is made.

Demurrers were interposed to the complaint by defendant Scarbrough "(1) Because it fails to show that there was any consideration passing to this defendant for his alleged indorsement of said note. (2) It is not alleged that said note was protested for nonpayment at maturity. (3) It is not shown that this defendant had any legal notice of the dishonor of said note at maturity, or notice of protest thereof. (4) For that the demand for payment made upon the principal, and his refusal to pay the said note as in the said count alleged, does not fix upon this defendant as the indorser thereof any liability to the plaintiff in this case. (5) For that it is shown by the terms of said count that this defendant did not waive rights of exemptions by his indorsement of the said note." He also filed demurrers attempting to raise the question of misjoinder of parties defendant, in that said counts aver causes of action only against Woodruff, and because the suit is brought against the defendant jointly, and no count of the complaint seeks to recover against both of said defendants. The complaint was amended by adding the fourth, fifth, sixth, and seventh counts, which were practically the same as the original counts, with the exceptions that both defendants were joined in each count. Afterwards the defendant Gus Woodruff was stricken from each count, and the defendant Scarbrough thereupon moved for a discontinuance. The other facts sufficiently appear.

Lapsley & Arnold, for appellant.

H. D McCarty, for appellee.

SIMPSON J.

This suit was brought by the appellee against the appellant and Gus Woodruff. The cause of action is a negotiable promissory note alleged to have been signed by Woodruff and indorsed by Scarbrough, and there are separate counts against each and others against both jointly.

The assignments of error first insisted upon are to the action of the court in overruling demurrers to the complaint as amended. There was no error in overruling said demurrers. The agency of said Noble, upon whom the notice of dishonor of the note is claimed to have been served, is sufficiently set out in the count. It is also sufficiently alleged that said Noble was authorized to receive such notice. At any rate, the count alleges that the notice was given to Noble, "who was present at defendant's (Scarbrough's) place of business and in the service and employment of said Scarbrough," etc., which is sufficient. 3 Randolph on Commercial Paper, p. 241, § 1219; 7 Cyc. 1090. This covers all of the propositions with regard to the agency of Noble and the question as to whether the written power of attorney, introduced in evidence, authorized Noble to accept notice of dishonor.

The next assignment of error insisted on is that the court erred in allowing the name of Gus Woodruff to be stricken out as a party defendant to the complaint. Section 3331 of the Code of 1896 (section 5367 of the Code of 1907). Our courts have held that one of the objects of this statute was to permit amendments striking out improper parties to the suit, without working a discontinuance of the action. Vinegar Bend Lumber Co. v. Chicago Title & Tr. Co., 131 Ala. 411, 30 So. 776; Evans Marble Co. v. McDonald & Co., 142 Ala. 130, 133, 37 So. 830; Masterson v. Gibson, 56 Ala. 56, 58; Jones v. Nelson's Ex'r, 51 Ala 471; Mock v. Walker, 42 Ala. 668, 670; Leaird v. Moore, 27 Ala. 326, 328. While the payee of a negotiable promissory note may sue both the maker and the indorser simultaneously in separate actions, yet, without statutory provision to that effect, there is no authority for suing them jointly. 8 Cyc. 292; 3 Randolph on Commercial Paper, § 1669. In the case of Abercrombie v. Knox et al., 3 Ala. 728, 37 Am. Dec. 721, referred to by counsel for appellant, the reference is to "separate suits" against all the parties. 3 Ala. 729-731 (37 Am. Dec. 721). Seeking to hold Scarbrough as a joint debtor does not change the fact that he is merely an...