Wilson v. Richards

• Decision Date: 04 October 1881
• Citation: 28 Minn. 337,9 N.W. 872
• Parties: WILSON AND OTHERS v RICHARDS AND OTHERS.
• Court: Minnesota Supreme Court

28 Minn. 337

9 N.W. 872

WILSON AND OTHERSvRICHARDS AND OTHERS.

Supreme Court of Minnesota.

Filed October 4, 1881.

Appeal from order of district court, Scott county.

Shaw, Levi & Cray, for appellant.

L. M. Brown, Lafayette French, and E. O. Wheeler, for respondent.

CLARK, J.

This is an appeal from an order of the district court of Scott county denying the plaintiff's motion for a new trial. The action was brought in the county of Mower, and on the application of the defendants Howe, Strait & Wilder was removed by order of that court to Scott county. It is claimed in behalf of the plaintiff that the order of removal was erroneous, and that it is properly reviewable on this appeal; both of which positions are contested by the defendants. In Lehmicke v. Railroad Co. 19 Minn. 465, the court reviewed such an order on an appeal from an order denying a motion for a new trial, and in Curtis v. Railroad Co. 20 Minn. 30, the same practice was pursued. While a review in this manner may not be quite logical, it is convenient and calculated to end litigation, and we think the practice which has obtained had better not be disturbed.

Upon the merits it appears that three of the six defendants resided in Mower county. The suit was therefore properly brought in that county, and the only ground upon which the motion could have been properly granted was that the convenience of witnesses and the ends of justice would be promoted by the change. This is a matter which must rest largely in the discretion of the court to which the application is made. We have looked carefully into the affidavits used on the motion, and, although there was not a very strong case for removal, we are not prepared to say that the granting of the order was an abuse of discretion. It is objected by the plaintiffs that the defendants, all of whom answered except William Richards, did not join in the application. Two of the other defendants consented, in writing, to the change. It does not appear the defendant French, who answered, had any notice of the application. The statute does not in terms require the defendants to join, and the ends to be promoted by the change, viz., the convenience of witnesses and the ends of justice, do not depend at all upon it. All the parties have a right to be heard, because it is the general convenience that is to be consulted It would seem, therefore, that defendants not joining in the application, or expressly assenting thereto, should have notice of the application so that they may be heard. But the defendant French, the only one not on record as favorable to the change, is not before us complaining of it, and there is nothing to show that it was not satisfactory to him. We cannot, therefore, say that the order of removal should not be allowed to stand.

The suit is brought upon two promissory notes made by William Richards, payable to the order of Richards, Wilder & Co., of which firm the maker and the other defendants are alleged to be members, and indorsed to the plaintiffs. Demand of payment of the maker at maturity, non-payment, and due notice thereof to Richards, Wilder & Co. are alleged in the complaint and put in issue by the answer. To prove the issue, the plaintiffs offered in evidence the instruments of protest of a notary public accompanying the notes, which, after stating the presentment, demand and refusal, and protest, certified that at the proper time “due notice of the foregoing presentment, demand and refusal, and protest” were put in the post-office at Minneapolis, and directed, postage prepaid, as follows: “Notice for William Richards,” directed Austin, Minn.; “Notice for Richards, Wilder & Co.,” directed Shakopee, Minn.; each of the above places being the reputed place of “residence of the person to whom the notice was directed.”

Objection is taken to the form or the certificate in respect that it states that “due notice was put in the post-office,” and not that he, the notary, put the notice in the post-office. But we think the language sufficient. It would be a grave derelection of official duty for the notary to certify to a fact which was not within his personal knowledge. The instruments of protest were received, and the plaintiffs rested their case, so far as relates to this point, upon them alone. The place of business of the firm was Shakopee, and Howe, Wilder, and Strait resided there; the former two at the time having the charge of the business and receiving the mail for the firm. William Richards resided at Austin. The notes were payable at the plaintiff's bank in Minneapolis.

Howe, Strait, and Wilder testified, under the objection and exception of the plaintiff's counsel, that they never received the notices of protest,-some of them with more positiveness than others,-and the court, upon this evidence only, submitted it to the jury to say whether the notices were in fact mailed, to which the plaintiff excepted. We think this was erroneous. The statute provides “that every notary public, when any bill of exchange or promissory note is by him protested for non-acceptance or non-payment, shall give notice thereof in writing to each party protested against immediately after such protest is made, and such notices may in all cases be given by depositing the same in the post-office, postage paid, and directed to the party protested against, at his reputed place of residence; and the notary shall, in such instrument of protest, certify to the time and manner of service of such notice upon the several parties protested against.” Rev. St. 1878, c. 28, § 7. Under this provision, notice is not required to be brought home to the indorser; but diligence in attempting to give it, of a certain specified degree and character, viz., the depositing the notice in the post-office, properly directed, postage paid, stands as and for notice, whether it ever reaches the indorser or not. This is the rule of the law-merchant, as we understand it, enacted into a...