Simpson v. Golden

• Decision Date: 13 April 1897
• Parties: SIMPSON v. GOLDEN.
• Court: Alabama Supreme Court

21 So. 990

114 Ala. 336

SIMPSON v. GOLDEN.

Supreme Court of Alabama

April 13, 1897

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

This was an action brought by W. R. Golden against E. H. Simpson in the city court of Birmingham, and counted upon a negotiable promissory note executed by the defendant, and payable to the order of "W. W. Achison, President." Achison was the president of the Syllacauga Land Company. The defendant filed several pleas. In the first, second, and third pleas he denied that the note was properly indorsed to the plaintiff. The fourth plea was the plea of the general issue, denying all the allegations of the complaint, and the fifth plea was the plea of payment. The sixth plea was as follows: "The defendant denies that plaintiff is the owner of said note as alleged in said complaint." The seventh plea was as follows: "The defendant denies that said note was indorsed to plaintiff as the owner thereof, and that said plaintiff was the owner thereof at the commencement of this suit." To the sixth and seventh pleas the plaintiff demurred upon the grounds that it appears from the complaint (1) that the note sued on is commercial paper, and hence ownership is not necessary to maintain an action; (2) said pleas did not deny that the plaintiff has a legal title to said note, and hence are no answer to the complaint; and (3) that indorsement of the note by the payee is admitted by the pleas, and hence the pleas are no answer to the action. This demurrer was sustained, to which ruling the defendant duly excepted. The cause was tried by the court, and judgment was rendered for plaintiff. Subsequently the defendant made a motion for a new trial upon the following grounds: (1) That defendant was taken by surprise by the testimony of Golden as to the manner he held said note, and could not be prepared at said trial to controvert Golden's testimony, but since the trial he had discovered that Golden had no judgment against the Syllacauga Land Company, and the alleged indebtedness of said company was controverted by it, and it is claimed that Golden was in its debt; that W. W. Achison and E. E. G. Roberts, directors and officers of said company would testify that the company was not indebted to Golden but that since he left its employment he was largely indebted to it. Roberts would further testify that he never heard of said note being placed as collateral with Golden. (2) That defendant and his counsel were taken by surprise, in that they did not deem that the testimony of Golden showed the company had placed the same with Golden as collateral security for the debt due and to become due; that all defendant knew was that the note had been indorsed by Achison, president of said company, to Golden, and was held by him; but defendant knew, also, that Golden was general manager of the company, and regarded his holdings to be for the company. (3) because the judgment is contrary to the evidence. (4) Because the judgment is contrary to the law. (5) Because the judgment is contrary to...