Stamper v. Gay

• Decision Date: 27 January 1890
• Citation: 3 Wyo. 322,23 P. 69
• Parties: STAMPER v. GAY et al
• Court: Wyoming Supreme Court

23 P. 69

3 Wyo. 322

STAMPER v. GAY et al

Supreme Court of Wyoming

January 27, 1890

Error to district court, Albany county.

Action by Jesse Stamper against Stephen H. Gay and another to recover on a promissory note. Plaintiff appeals. Reversed.

Judgment reversed.

Brown Blake & Arnold, for plaintiff in error.

H. V S. Groesbeck, for defendants in error.

CORN J. VAN DEVANTER, C. J., and SAUFLEY, J. concurred in above opinion.

OPINION

CORN, J.

This was a suit brought before a justice of the peace to recover upon a promissory note executed by defendants in error, bearing date September 1, 1887, and payable to one William Stamper, a brother of plaintiff in error. The note bore the indorsement: "Pay to Jesse Stamper the inside amount. WILL STAMPER." The defendants, who are also defendants in error here, filed a written answer denying that plaintiff was the owner of the note, and also setting up, by way of defense, that, before any transfer of the note by the payee to plaintiff, Stephen H. Gay, defendant, was served with notice of garnishment, issued out of the justice's court of one JOHN Q. BROOKS, in the county of Carbon, and thereafter, under the order of the court, paid into said justice's court the entire amount due on said promissory note, in certain suits brought against William Stamper, and that by said payment said note was discharged. The plaintiff interposed a general denial to the new matter in the answer, and a trial resulted in a judgment for plaintiff. Defendants appealed to the district court, where a jury trial was had, resulting in a verdict and judgment for the defendants. The plaintiff comes by petition in error to this court.

We are of the opinion that the answer of defendants, in so far as it denies that plaintiff was the owner of the note, in the sense of denying that he was the possessor of the beneficial interest in it at the time of the trial, or when suit was brought, presents an immaterial issue. If it was assigned by a special indorsement to him, or by indorsement in blank made by the payee in whose possession it was at the time of such indorsement, and was delivered to him by the payee, he became the legal holder of the note, and as such could sue and recover on it in his own name. Daniel, Neg. Inst. § 1181a; Bliss, Code Pl. § 232. Whether William Stamper was the owner of the note at the time of the alleged proceedings in garnishment is quite a different question.

In our view of this case, it will be necessary for us to consider but one of the errors assigned. Evidence was offered by the defendant to show that William Stamper, the payee in the note, became indebted in Carbon county, where he resided, and subsequently left the territory, leaving his debts unpaid that attachment suits were instituted by his creditors before JOHN Q. BROOKS, a justice of the peace of that county, and that defendants were summoned, as garnishees, to answer concerning their indebtedness to William Stamper upon the note in question; that they answered, and, upon the order of the justice, paid into his court the full amount due upon the note, and were thereby discharged from all liability thereon. To establish this state of facts they offered in evidence a certified transcript of the justice's docket. The certificate to the transcript was as follows: "The territory of Wyoming, county of Carbon--ss.: I do hereby certify that the above is a full and true copy from my docket of the proceedings had by and before me at my office in Carbon, Carbon county, Wyoming territory, in...