State Exch. Bank of Elk City v. National Bank of Commerce of St. Louis, Mo.
| Decision Date | 23 July 1918 |
| Docket Number | 8112. |
| Citation | 174 P. 796,70 Okla. 234,1918 OK 389 |
| Parties | STATE EXCH. BANK OF FLK CITY v. NATIONAL BANK OF COMMERCE OF ST. LOUIS, MO., et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A misjoinder of parties or excess of parties cannot be taken advantage of by demurrer, but can only be reached by motion filed before joining issues on the merits.
A misjoinder of causes of action can only be reached by special demurrer setting forth distinctly the grounds of objection and cannot be met by general demurrer or by objection to the introduction of evidence.
If one who is made a party to a cause of action appears and answers a cross-action against him without objection to being made a party or to misjoinder of causes of action, he will be deemed to have waived all objections, except that the facts alleged are not sufficient to state a cause of action against him.
A pleading containing a general denial and also matter in the nature of a general demurrer will be treated as an answer and the demurrer will be considered as waived; and, if the pleading attacked by fair legal intendment states a cause of action, though defectively stated, an objection to the introduction of testimony will be overruled.
One who indorses a promissory note without recourse is a qualified indorser and warrants to subsequent bona fide holders: First that the instrument is genuine and what it purports to be second, that he has a good title to it; third, that all prior parties had capacity to contract; fourth, that he has no knowledge of any fact which would impair its validity or render it valueless. He cannot, in action in which he is made a party, brought by a subsequent bona fide holder of the instrument, impeach such warranty by objecting to a judgment against the maker and prior indorsers in favor of such holder.
Commissioners' Opinion, Division No. 1. Error from District Court, Beckham County; T. P. Clay, Judge.
Action by the National Bank of Commerce of St. Louis, Mo., as plaintiff, against D. A. Mayer and Calvin M. Rosser, as defendants, in which the State Exchange Bank of Elk City is interpleaded by said defendants. From judgment in favor of defendants, Mayer and Rosser, and against the interpleader, the State Exchange Bank of Elk City brings error. Affirmed.
See, also, 169 P. 482.
Keaton, Wells & Johnston, of Oklahoma City, R. N. Linville, of Elk City, and Frank L. Williams, of Sayre, for plaintiff in error.
Asp, Snyder, Owen & Lybrand, of Oklahoma City, and Echols & Merrill, of Elk City, for defendants in error.
The plaintiff, National Bank of Commerce of St. Louis, brought its action as the alleged holder in due course of a negotiable promissory note signed by D. A. Mayer and indorsed by Calvin M. Rosser, payable to the order of State Exchange Bank of Elk City, the action being against Mayer and Rosser as defendants. Mayer and Rosser filed answer to the petition, and also filed cross-petition against State Exchange Bank of Elk City, and asked that the State Exchange Bank of Elk City be made a party to the action. As grounds for defense and for cause of action against the State Exchange Bank of Elk City, said defendants admit the execution and indorsement of the note, and, in substance, urge that the note is nonnegotiable, but, if not nonnegotiable, the plaintiff is not a holder in due course; that at the time of the execution of said note and as a part of the same transaction certain collateral notes amounting to $28,500 were placed in the State Exchange Bank of Elk City as collateral security for the payment of the note in question, and other notes aggregating in all the sum of $26,500; that the State Exchange Bank has collected all of said collateral notes and converted and used the proceeds thereof, the total sum collected being more than sufficient to discharge and satisfy the note sued upon and all other indebtedness, for which such collaterals stood security; that the State Exchange Bank fraudulently separated the note set out in plaintiff's petition from the collateral notes, and wrongfully and fraudulently disposed of said note and collected the collateral notes. Defendants pray the court that the State Exchange Bank be made a party defendant; that the plaintiff take nothing by its suit, but that, in case a judgment be rendered against the defendants, they have judgment against the State Exchange Bank in the same amount, together with costs and other proper relief. To which answer and cross-petition the plaintiff filed general denial, and the State Exchange Bank appeared and filed what was styled answer to cross-petition containing a general denial, and also matters in the nature of a general demurrer, making no objection on the ground of misjoinder.
Chas. E. Davis, Wm. D. Leonard, and J. A. Moon were officers of the State Exchange Bank, Chas. E. Davis being president, and being also associated with Mayer and Rosser as a member of the Wichita Falls & Northwestern Town-Site Company. The town-site company had acquired property and also incurred considerable indebtedness. The note sued upon, though signed only by Mayer and indorsed by Rosser, was the obligation of the town-site company; there were several other notes signed by individuals of the town-site company which were town-site obligations, and the town site had notes owing to it in the approximate sum of $28,500, being the notes used as collateral, as aforesaid. The lands of the town-site company were sold to Kemp & Kell, capitalists, of Wichita Falls, and as a part of the consideration Kemp & Kell guaranteed the payment of the notes owing to the town-site company, which guaranteed notes were placed as collateral to the note sued upon and other obligations of the town-site company evidenced by divers notes signed by individual members of such town-site company. Afterwards the State Exchange Bank, by its president, Chas. E. Davis, indorsed the note in question without recourse, and the said Chas. E. Davis, Wm. D. Leonard, and J. A. Moon then indorsed the note as collateral to obligations individually owed by them to the plaintiff. The obligations for which said note was collateral maturing and being unpaid, the plaintiff caused the collateral held to be sold at public sale, and the plaintiff at such sale purchased the note, afterwards bringing action on the same against Mayer and Rosser. The evidence fully established the fact that the State Exchange Bank had realized on the collateral notes held by it more than a sufficient sum to pay the note in question and the other obligations for which such collaterals were held as security, but there is no evidence to show that the plaintiff was not a holder in due course. The court peremptorily instructed the jury to return a verdict for the plaintiff, and submitted the issues arising on the cross-action by Mayer and Rosser against the State Exchange Bank to the jury under instructions as to the law. The jury returned a verdict as instructed against the defendants, Mayer and Rosser, and in favor of the plaintiff, and also a verdict in favor of Mayer and Rosser and against the State Exchange Bank of Elk City. Judgment was accordingly rendered by the court, from which the State Exchange Bank duly prosecuted error. The plaintiff in error, State Exchange Bank, summarizes the error complained of as follows:
"(1) Error in admitting the issue of conversion of collateral raised by Mayer and Rosser against the State Exchange Bank, including error in admission of evidence; (2) error in declaring as a matter of law that the plaintiff, National Bank of Commerce, took the note bona fide and without notice of equities; (3) error relating to instructions."
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