Hay v. Hudson

• Decision Date: 08 April 1924
• Docket Number: 1199,1206
• Citation: 31 Wyo. 150,224 P. 840
• Parties: HAY v. HUDSON, ET AL., HUDSON ET AL., v. HAY
• Court: Wyoming Supreme Court

224 P. 840

31 Wyo. 150

HAY v. HUDSON, ET AL., HUDSON ET AL., v. HAY

Nos. 1199, 1206

Supreme Court of Wyoming

April 8, 1924

ERROR to District Court, Fremont County; ROBERT R. ROSE, Judge.

Action by John W. Hay against Frank L. Hudson and others. Judgment for defendants on plaintiff's cause of action, and for plaintiff on the counterclaim of Frank L. Hudson, and plaintiff and defendant Hudson bring error.

Judgment on counter-claim affirmed. Judgment against plaintiff reversed and case remanded.

W. E Mullen and W. E. Hardin for Hay.

The court erred in overruling plaintiff's motion for judgment notwithstanding the verdict; the verdict returned was not sustained by the pleadings or the evidence, 5893 C. S Mitter v. Coal Co., 28 Wyo. 439; 23 Cyc. 820; the judgment being outside the issues was void, Hart v Metcalf, 3 Wyo. 513; Newcastle v. Smith, 28 Wyo. 371; St. Louis v. Williams, (Okla.) 155 P. 249; it should be reversed with directions, Lumber Co. v. Davis, 14 Wyo. 455; there were neither pleadings, evidence nor findings to sustain it, 28 Cyc. 778, the execution of the notes was admitted; no matters in avoidance were pleaded in defense; this justified a judgment notwithstanding the verdict, Jones v. R. R. Co., 23 Wyo. 162, 5895 C. S., an affirmative defense of an admitted obligation is not proveable under a general denial, Pom. C. R. Secs. 535, 536, 576; McKyring v. Bull, 16 N.Y. 297; a defense that plaintiff is not the real party in interest must be raised by demurrer or answer, 15 Ency. P. & P. 713; Spooner v. Co., 115 N.Y. 22; Pom. C. R. Sec. 69; it must be pleaded as a special defense, Esch v. White, 82 Minn. 462; Berry v. Barton (Okla.) 71 P. 1074, 66 L. R. A. 513; Pom. C. R. 587; Lesh v. Meyer, 63 Kans. 524, 66 P. 245; Wakemand v. Norton, 24 Colo. 192, 49 P. 283; the causes of action upon mortgages were equitable and triable to the court, 5724 Comp. Stats., a verdict in an equity case is merely advisory, Morgan v. Spangler, 20 O. S. 38; Lellman v. Mills, 15 Wyo. 177; motions under 6895 C. S. are decided upon the pleadings, Challen v. Cinti., 40 O. S. 113; Kime v. Jesse, 52 Neb. 606; B. & O. Ry. Co. v. Mobile, 85 O. S. 175; instruction numbered four was erroneous as the holder of a negotiable instrument may sue thereon in his own name, 3984 Comp. Stats, one in possession of a note indorsed in blank by payee, is a holder in due course, and may sue in his own name, 3984 Comp. Stats., defense that plaintiff is not real party in interest, is not available unless offsets or counterclaims are cut off, Sturgis v. Baker, (Ore.) 72 P. 746; Lodge v. Lewis, 1009; McPherson v. Weston, 64 Cal. 275, 30 P. 842; unless a plea of mala fides be made against plaintiff's possession, McCallum v. Driggs, 35 Fla. 277, 17 So. 407; Caldwell v. Lawrence, 84 Ill. 161, this applies even if the plaintiff is not the real owner, Brown v. Chenoworth, 51 Tex. 470; it is no defense that suit is brought by owners in a fictitious name, if defendant has no other defense, Epting v. Jones, 47 Ga. 622; pleading of a counterclaim is an admission of the existence of plaintiff's demand, Leclaire v. Thibault, 41 Ore. 601, 69 P. 552; Steele v. Etheridge, 15 Minn. 501; Sydner Co. v. Company, 125 N.C. 80, 34 S.E. 198; Davis v. Seattle Bank, 19 Wash. 65, 52 P. 526; to maintain a counterclaim the demands must be mutual, 20 Johns 137; Murray v. Toland, 3 Johns 569; Rush v. Thompson, 112 Ind. 158; Proctor v. Cole, 104 Ind. 373; Lowell v. Nelson (Mass.) 11 Allen 104; a judgment for plaintiff would discharge defendants, Blaser v. Flech, (Ore.) 189 P. 637; 30 Cyc. 84; the term "discount" may mean a loan, Farmers' Bank v. Baldwin, 23 Minn. 198, 18 C. J. 1052; Wheeler v. Bank, 42 Md. 581, 20 Am. St. Rep. 95; Black v. Bank, 96 Md. 399, 54 A. 88; Penn Ins. Co. v. Carpenter, 40 O. S. 260; a purchase of a note from payee with the latter's indorsement is not a sale unless indorsement be without recourse, Nicholson v. Bank, 92 Ky. 251, 16 L. R. A. 223; Bank v. Johnson, 104 U.S. 271; Fleckner v. Bank, 8th Wheat 350, 5 L. ed. 631; Dunkle v. Renick, 6 O. S. 524; the court failed to charge on all of the issues made by the pleadings, 5769 Comp. Stats., the verdict was based on matter of abatement, while the judgment is in form a final adjudication and void, Hooven Co. v. Featherstone's Sons 111 F. 81, (C. C. A. 8th). The judgment against plaintiff should be reversed.

H. C. Brome and P. B. Coolidge for Hudson and others.

The evidence showed that plaintiff was not the owner of the notes, and was not entitled to maintain an action thereon, 4 Stand. Ency. Pro. 229, production of the notes by plaintiff made a prima facia case requiring affirmative evidence by defendant to prove that plaintiff has parted with his title or acquired title fraudulently, which facts must be pleaded in the answer; the rule does not apply here, since one of plaintiff's witnesses testified that the bank was the owner and holder of the notes, Nat. Co. v. Reporting Co., 86 Wis. 352 cited by plaintiff is not in point, for the reason that it relates to the sufficiency of defendant's answer; the counterclaim of defendant Hudson is based upon an unlawful or irregular foreclosure of a chatel mortgage, which was a conversion of defendant's property, the measure of damages for which is the value of the property less the amount due on the mortgage debt, in which case the burden is upon defendant to plead and prove the amount due on the mortgage debt, 8 R. C. L. 489; 26 R. C L. 1151; Cone v. Ivinson, (Wyo.) 33 P. 31, 35 P. 933; Sansone v. Studebaker, (Kans.) 187 P. 673; in such a case mortgagor is entitled to recover the highest market value of the property converted between the date of the conversion and the trial, Hilliard Co. v. Woods, 1 Wyo. 400; the notice of chattel mortgage foreclosure did not comply with the statute, which requires publication for three successive weeks, meaning that twenty-one days must elapse between the first publication and date of sale, 5703 Comp. Stats; the trial court held, however, that 4701 Comp. Stats. made three weekly insertions of notice sufficient; the authorities hold that the words "for three successive weeks" means three full weeks or twenty-one days; the word "for" denoting a period of three weeks, Early v. Burr, 188 U.S. 567; Wilson v. Ins. Co., 65 F. 38; Myakka Co. v. Edwards, 68 Fla. 372; Bank v. Copeland, 18 Md. 305; Hartzell v. Vigen, 6 N.D. 117, Frisk v. Reigelman, 75 Wis. 499; Cruzen v. Stephens, 123 Mo. 337; Wyant v. Co., 203 P. 961; State v. County, 79 N.W. 825; Bauchier v. Hammer, 123 N.W. 132; 5701-5703 Comp. Stats. is a part of the Code of Civil Procedure; a reasonable construction of these Sections is that they do not change the period of time required, but were enacted to govern the number of insertions in a newspaper during the publication period required, in other words to regulate the publication of legal notices in other than weekly papers; to dispense with the necessity for a greater number of insertions than the number of weeks for which the notice is required to be published, and possibly to legalize publication at irregular intervals in weekly newspapers.

W.E.Mullen and W. E. Hardin in reply.

Plaintiff's affirmative defense to the Hudson counter-claim was not denied by a pleading and is therefore admitted, 5671 Comp Stats; McGinnis v. Beatty, 28 Wyo. 328, 204 P. 340; the citation to 4 Standard Ency. Pro. 229 supports contentions of plaintiff in error since he is the owner of the notes, and produced them at the trial; the witness Fair testified that plaintiff was the owner and holder of the notes; plaintiff was in possession of them; plaintiff's right to sue was not put in issue by the pleadings, Wakeman v. Norton, 24 Colo. 192; Buckmaster v. Williams, (Colo.) 212 P. 977; Bank v. Doyle, (Cal.) 203 P. 780; the general issue admits the competency of plaintiff to sue, 31 Cyc. 207, the defense must be specially pleaded, Demple v. Carroll, 21 Wyo. 459; 31 Cyc. 219; Dodson v. Moran, 101 Kans. 592, 168 P. 841; Church v. Zywert, (Mont.) 190 P. 293; Bank v. Stewart, 184 F. 673; Hukell v. McGinnis, (Colo.) 202 P. 110; the defense was waived, C. S. 5651-5653; Gilland v. U. P. Ry. Co., 6 Wyo. 185; Mau v. Stoner, 15 Wyo. 127; Fidelity & Guaranty Co. v. Parker, 20 Wyo. 51, 121 P. 531; 5582 Comp. Stats. contains exceptions authorizing one to sue for the benefit of another or as a trustee; the trust relation or agency need not be shown in writing, 30 Cyc. 90; Weed v. Ins. Co., 133 N.Y. 394; Bolln v. Metcalf, 6 Wyo. 11; Kelley-Clark Co. v. Leslie, (Cal.) 215 P. 699; State v. Kinnett, 214 P. 776, 30 Cyc. 52; under the Negotiable Instruments Law the holder of a note may sue in his own name, Nichols v. Gross, 26 O. S. 425; Hayes v. Galion Co. 29 O. S. 330; White v. Stanley, 29 O. S. 423; Brown v. Ginn, 66 O. S. 316, 64 N.E. 123; pleadings must support the judgment, Fehlman v. Kinneer, 205 P. 1091; the Hudson counterclaim is insufficient in allegation of fact, a chattel mortgage cannot maintain an action against a mortgagee for trover, unless the mortgage has been paid, Jones on Chat. Mortgs. Sec. 435; Holmes v. Bell, 57 Mass. 322; Brown v. Bement, 8 Johns (N. Y.) 96; Burdick v. McVanner, 2 Denio (N. Y.) 170-171; Bank v. Wilbur, 16 Colo. 316, 26 P. 777; Hill v. Merrimam, 72 Wis. 483, 40 N.W. 399; 2 Cobbey Chat. Mtgs. 1034; a defendant cannot counterclaim against a claim the existence of which he denies, 5663 C. S., the foreclosure notice was published once each week for three successive weeks, in compliance with law, 4701 C. S., also 5701 C. S. The cases cited by counsel for defendant in error are based upon statutes essentially different from ours; the publication was sufficient, Courtland Bank v. Lighthall, 104 N.Y.S. 1024; Wood v. Moorhouse, 45 N.Y. 368; Bank v. Jacobson, 8...