Weitz v. Wolfe

• Citation: 28 Neb. 500,44 N.W. 485
• Parties: WEITZ v. WOLFE.
• Decision Date: 14 January 1890
• Court: Supreme Court of Nebraska

28 Neb. 500

44 N.W. 485

WEITZ

v.WOLFE.

Supreme Court of Nebraska.

Jan. 14, 1890.

Syllabus by the Court.

1. Where the payee of a negotiable promissory note sells the same with the following written on the back of it, “I guaranty the payment of the within note, waiving demand and notice of protest,” which is signed by the payee, held to constitute an indorsement, and that the maker and indorser may be joined in an action on said note.

2. “In an action at law, to obtain a review of errors which have occurred during the progress of a trial, they must be assigned in a motion for a new trial.” Manning v. Cunningham, 21 Neb. 288, 31 N. W. Rep. 933.

Error from district court, Johnson county; APPELGET, Judge.Clarence K. Chamberlain, for plaintiff in error.

S. P. Davidson, for defendant in error.

NORVAL, J.

This action was brought in the county court of Johnson county to recover the amount due on a promissory note for $309 made by one R. P. Jennings, and payable to the order of T. T. Weitz. Before maturity the payee sold and transferred said note to the defendant in error, C. C. Wolfe, making the following indorsement of the same: “I guaranty the payment of the within note, waiving demand and notice of protest. T. T. WEITZ.” Jennings and Weitz were made defendants. The former did not appear, although served. The latter answered, alleging a misjoinder of parties and of causes of action. A reply was filed, trial had, and judgment rendered against both defendants. Weitz alone appealed to the district court, where the defendant in error filed his petition, which was substantially the same as the one filed in the lower court, except that in the prayer judgment was asked against Weitz alone. Plaintiff in error moved to strike the petition from the files, because it stated a different cause of action from that set up in the county court. This motion was overruled, and the plaintiff answered, alleging the misjoinder of parties and causes of action. A reply was filed, the cause was tried to the court, and judgment was rendered against the plaintiff in error for the amount of the note. Motion for a new trial was overruled, and Weitz brings the case here by petition in error.

It is contended that Weitz was simply a guarantor, and is not liable in the same action with Jennings, the maker of the note, and the case of Mowery v. Mast, 9 Neb. 445, 4 N. W. Rep. 69, is cited to support the position. That was a case where one Calvert executed a note to Mast & Co., which note was, before its delivery, guarantied by one Mowery. It was correctly held in that case that a joint action would not lie...