Waldock v. Winkler
| Decision Date | 05 October 1915 |
| Docket Number | 5648. |
| Citation | 152 P. 99,51 Okla. 485,1915 OK 729 |
| Parties | WALDOCK v. WINKLER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In an action upon a negotiable promissory note, the question of the ownership of the note sued on cannot be raised by a motion to dismiss or by a demurrer, but can be raised by answer only.
The possession of a note by the payee is prima facie evidence of ownership, even though the note shows an indorsement by the payee, uncanceled.
Commissioners' Opinion, Division No. 4. Error from County Court, McCurtain County; E. E. Cochran, Judge.
Action by George Winkler against A. J. Waldock. Judgment for plaintiff, and defendant brings error. Affirmed.
Newton W. Gore, of Idabel, for plaintiff in error.
T. A Hope, of Idabel, and R. W. Skipper, of McAlester, for defendant in error.
This action was instituted upon a negotiable promissory note by George Winkler, the payee in the note against A. J. Waldock the maker thereof. The parties hereto will be designated as in the court below. The note was made payable to the order of the said George Winkler, and bears the following indorsement:
This indorsement is uncanceled, and not referred to or explained in plaintiff's petition, which is an ordinary petition in a suit upon a promissory note.
Defendant filed against the petition a motion to dismiss the action upon the grounds that the copy of the note attached to the petition "shows upon its face that the plaintiff has no interest in or to the note sued upon." Such a motion operated as a demurrer to the petition, and was so treated in the trial court. The same was overruled, the defendant elected to stand upon the same, judgment was entered against him, and he perfected an appeal to this court, assigning as error the overruling of his demurrer and the entering judgment against him.
The action of the trial court is sustained by either of the two following theories:
1. The case of Moore et al. v. Leigh-Head & Co., 149 P 1129, following the well-considered and exhaustive case of Berry et al. v. Barton et al., 12 Okl. 221, 71 P. 1074, 66 L. R. A. 513, is directly in point and decisive of the question presented in the case at bar. In that case the action was instituted upon a surety bond made payable to a firm. The firm was afterwards dissolved, and one of the partners succeeded to the assets, including the bond. The bond having been breached, suit was instituted thereon in the name of the firm, and the defendants at the trial moved a dismissal of the action upon the grounds that the suit was instituted in the name of the firm, when the evidence showed that one of the members had taken over the assets and was the only party in interest, and upon the question thus presented this court held:
If it be true that the plaintiff in the case at bar is not the owner of the note sued upon by him, then that fact cannot be raised by a motion to dismiss or by a demurrer, but can be raised by answer only.
2. The possession of a note by the payee is prima facie evidence of ownership, even though the note shows an indorsement by the payee which is uncanceled.
The case of Bynum v. Hobbs, 56 Tex.Civ.App. 557, 121 S.W. 900, holds:
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