31 Minn. 329 | Minn. | 1883
After the plaintiff had rested, and one witness had been examined on behalf of the defendant, plaintiff interposed a motion to dismiss the action, which was overruled by the court. The plaintiff bases his right to dismiss upon Gen. St. 1878, c. 66, § 262, subd. 1, and insists that the words “before trial,” in that section, mean before the submission of the ease to the court or jury. But this -would evidently do away with any distinction as respects the time for such dismissal by the plaintiff, between subdivisions 1 and 3 of the section.
The words “before trial” mean before the commencement of the trial. St. Anthony Falls W. P. Co. v. King Bridge Co., 23 Minn. 186. It was too late, therefore, to dismiss the action as a matter of right under subdivision 1, and it is not claimed that the court erred in not dismissing it under subdivision 3.
2. In order to establish the liability of the defendant as indorser upon the notes sued -on, the plaintiff introduced in connection with them certain instruments of protest, purporting to be executed under the hand and seal of a notary residing at Oil City, in the state of Pennsylvania, where the notes were dated, which severally recited the facts, showing proper demand of payment and refusal, whereof, “I” (the notary) “duly notified the indorser.” The trial court ruled that the instruments of protest, including the certificate of notice, were properly admissible in evidence, and they were accordingly received. The court also held that the certificate of the notary showing that he duly notified the indorser was prima facie evidence that notice was in fact given him personally, and not in any other mode. Thereupon the defendant, being called as a witness, testified that at the time of the indorsement of the notes by him he lived at Allentown, Pennsylvania, several hundred miles from Oil City, where they were protested, and that at the time of the maturity of the first note he was actually residing at Moorhead, in this state; and he denied that he ever had any notice that the notes remained unpaid, until within a short time before this action was commenced. The jury found for the defendant.
As the case stands, the order denying a new trial should be affirmed.