Schofield v. Palmer

• Decision Date: 22 December 1904
• Citation: 134 F. 753
• Parties: SCHOFIELD v. PALMER et al.
• Court: U.S. Court of Appeals — Fourth Circuit

134 F. 753

SCHOFIELD v. PALMER et al.

United States Circuit Court, W.D. Virginia.

December 22, 1904

Daniel Trigg, for plaintiff.

White &amp Penn, for defendants.

McDOWELL District Judge.

These were sundry motions for judgment under section 3211, Code Va 1887 Ann. Code 1904, p. 1686), made by the receiver of a New York national bank. This statute, so far as now of interest reads: 'Any person entitled to recover money by action on any contract may * * * obtain judgment for such money after fifteen days' notice.'

The plaintiff being a nonresident of this state, in each of the cases the defendants who appeared suggested the nonresidence of the plaintiff, and moved for security for costs. Under section 3539, Code 1887 (Ann. Code 1904, p. 1891), and section 914 Rev.St.U.S. (U.S.Comp.St. 1901, p. 684), I think these motions should be granted in those cases in which final judgment is not now to be entered. Miller v. N. & W (C.C.) 47 F. 164. While I doubt if such certificate can be made, I shall adopt the plaintiff, in lieu of security for costs, to file a certificate bringing the cases under the operation of section 1001, Rev.St.U.S. (U.S.Comp.St. 1901, p. 713).

In each of these cases the defendants moved to dismiss the plaintiff's motion on the ground that the notice given by the plaintiff is a 'process,' and that it is not under the seal of the court, etc., as required by section 911, Rev.St.U.S. (U.S.Comp.St. 1901, p. 683). I have recently discussed this question in the opinion in Leas and McVitty v. Merriman (C.C.) 132 F. 510, and for the reasons there stated this motion of the defendants was overruled.

In each case where the note or bill used on names the rate of interest at 5 per cent., I think the judgment should be for the principal and interest thereon at the rate agreed on until payment. 3 Minor's Insts. 386. Where no rate of interest is specified., I think judgment should be for interest at the rate of 6 per cent. per annum from maturity until payment. This is the legal rate in this state. No evidence of the legal rate in New York (the place of payment) was offered. While the rate of interest, where not specifically agreed upon, is to be determined by the law of the state of performance (3 Minor, 384), yet where there is no evidence of the rate under such law the courts here will presume that the statutory rate in New York is the same as the statutory rate in this state. 2 Phillips, Ev. note p. 49; Cox v. Morrow, 14 Ark. 603; Chapin v. Dobson, 78 N.Y. 74, 34 Am.Rep. 513; Dubois v. Mason, 127 Mass. 37, 34 Am.Rep. 336; Rape v. Heaton, 9 Wis. 328, 76 Am.Dec. 275; Piedmont Co. v. Ray, 75 Va. 823; Smith v. Smith, 19 Grat. 548; Wharton, Conflict of Laws, Sec. 779; 17 Am.& Eng.Ency. (1st Ed.) 976.

In one of these cases, an indorser of the negotiable note sued on being a defendant, the only evidence offered that notice of protest had been sent the said indorser was the notary's certificate to such effect. Under the law merchant it is not a part of the notary's official duty to give notice of dishonor, and his certificate that he had sent notice is not even prima facie evidence of such fact. 2 Daniel, Negot.Insts. (3d Ed.) §§ 959, 960; 1 Am.& Eng.Ency. (1st Ed.) 406; 4 Am.& Eng.Ency. (2d Ed.) 389; 3 Minor's Insts. 447; Chitty, Bills, 656; Byles, Bills (3d Amer.Ed.) (224) 331; Story, Prom.Notes (3d Ed.) 366; Nicholls v. Webb, 8 Wheat. 326, 331, 5 L.Ed. 628; Dickins v. Beal, 10 Pet. 582, 9 L.Ed. 538; Walker v. Turner, 2 Grat. 536; Burke v. McKay, 2 How. 66, 11 L.Ed. 181; Harris v. Robinson, 4 How. 336, 11 L.Ed. 1000; Sims v. Hundley, 6 How. 1, 12 L.Ed. 319; Union Bank v. Gregory, 46 Barb. (N.Y.) 98; Slaughter v. Farland, 31 Grat. (Va.) 134. Consequently the statute law of this state must alone be looked to for authority (there being no evidence that the notary is not alive and capable of testifying-- Nicholls v. Webb, 8 Wheat, 331, 5 L.Ed. 628) for holding the notary's certificate even prima facie evidence that notice of nonpayment of the note sued on was mailed to the indorser. The state statute making such certificate prima facie evidence of what is stated therein was, I think, repealed by the act of December 24, 1903 (Acts 1902-03-04, p. 899, c. 569). 10 Va. Law Reg. pp. 66, 89; Pollard's Va. Code, p. 1495. The plaintiff, having moved therefor in due time (section 3387, Code 1887 (Ann. Code 1904, p. 1796)), may take a voluntary nonsuit, which amounts in this state to a dismissal without prejudice.

In one of these cases (No. 566) one of the notes sued on was made January 28, 1904, and is payable in New York four months after date. The notice of motion for judgment was served on the defendant on May 28, 1904. The defendant filed a plea in abatement, setting up the fact that by reason of legal holidays under the New York statutes the note did not mature until May 31st. The plaintiff demurred to the plea. While a notice of motion for judgment is to be viewed liberally (Pollard's Code, note p. 1688; 4 Minor's Insts. (3d Ed.)pp. 633, 1318; 2 Barton's Law Pr. (2d Ed.) p. 1040), I can think of no good reason for allowing such a notice to be given in advance of liability on the part of the defendant. Every reason for sustaining a plea in abatement to a writ or declaration where a regular action at law has been prematurely instituted applies to a notice of motion prematurely served on a defendant. If a notice of motion for judgment on a note is given in advance of its maturity, mere payment of the note on maturity may not prevent a judgment against the defendant. The fact of payment may not be made known to the court on the day of trial, and the defendant, in common prudence, must come to court with his evidence of payment, in order to be sure that no judgment will be entered against him. It is true, conceding fairness to the plaintiff, that when the defendant comes to court he will not find the motion on the docket. But the defendant may have had no notice that the plaintiff has not docketed the motion, and he had a right to act on the notice that was given him that the motion would unconditionally be made for judgment. If, when the defendant arrives at court, he learns that the motion has not been docketed, he has been made illegally to suffer a loss of time and the expense of the journey. While in an independent action for damages he might recover against the plaintiff compensation for these losses, it is not the policy of the law that a debtor who pays his debts in full on maturity should be so harassed, and required to bring an action to secure compensation. It follows that judgment should now be rendered quashing the notice of motion in so far as it relates to the note in question, and judgment rendered for the defendant against the plaintiff for the cost of filing the plea in abatement.

In another case there were two defendants, the maker and the indorser of the note sued on. The notice in this case also was served before the maturity of the note. Only the indorser appeared, and he pleaded in abatement the premature service of the notice. The plea in abatement here calls for no further discussion than is found in the opinion in case...