44 Fla. 497 | Fla. | 1902
The First Rational Bank of Ocala brought suit in the Circuit Court of Marion County against Robert J. Camp, John S. Camp' and B. F. Camp, partners as R. J. Camp & Bros., and Rene R. Snowden, George B. Griffin and John A. Bishop, charging them as joint makers upon a note, of which the following is a copy:
■ “Ocala, Florida, April 27th, 1891.
$600.
Three months after date I promised to pay to the order of the First Rational Bank of Ocala, Six Hundred & 00-100 Dollars, at the First Rational Bank of Ocala, Fla. Value received; with interest at the rate of two per cent, per month after maturity until.paid. If not paid at maturity the holder may at his option place in the hands of an attorney for collection, and if collected through an ^attorney each of us, whether maker, security or endorser on this note,, hereby agree to pay all costs of such collection, including attorneys’ fees of ten per cent, of the face hereof.
John A, Bishop.
Due July 27-30-91.
•Ho. 482.
R. R. Snowden, G. B. Griffin.
Demand, protest and notice of protest waived.
R. R. Snowden, G. B. Griffin, R. J. Camp & Bro.”
There was no service upon Bishop. The cause was referred to a referee for trial, who rendered judgment against the other defendants, from which a writ of error
I. The first assignment of error is chat the referee erred in permitting an amendment to the sheriff's return as. to non-service upon the defendant Bishop, and in hearing the cause as to the remaining defendants. Summons was duly issued, and a return was made thereon by the sheriff, as follows: “Came to hand the 3rd. day of Feby., 1892, and not executed, as* John A. Bishop can not be found in Marion county. Feby. 26th, 1892. E. T. Williams, Rhlf. Marion. Ca.” Defendant Snowden appeared, but filed no pleas. The other defendants, except Bishop, filed pleas on May 23rd, 1892. and with their consent and that of the plaintiff, expressed in writing, the cause was referred on March 22nd, 1893, to Richard McConathy, a practicing; attorney, for trial. The same defendants filed .other pleas on May 30, 1893, and on December 23, 1895, filed additional pleas puis darrien continuance. On -Tan-' uary 25th. 1895, the referee made an order permitting the amendment 'of the sheriff's return as. to Bishop, so that it should read as follows: “Came to hand the 3rd day of February, 1892, and not executed, as John A. Bishop does not reside in Marion county.” That is the amendment now complained of by the plaintiffs in error under this assianment of error. Affidavits filed in support of the application proved that the amendment was sought to make Ihe return accord with the fact, and that the return as amended wás one Which the sheriff ought to have made in the first instance. Doggett v. Jordan, 3 Fla. 215. Its object was to effect a severance as to Bishop, not served with process, and admit of the prosecution of the suit against the other defendants, of whom jurisdiction had
II. The second, third, ninth and tenth assignments of error may be considered together. The second and ninth relate to the admissibility or effect of testimony, and the third and tenth allege error in finding that the defendants were makers of the note sued on. Ail of them must fail if, as the referee found, the evidence conclusively showed that the plaintiffs in error were liable as maJcers of the note sued on. They were sued as makers, and by their pleas denied that they made the note. The evidence introduced, both on the part of the plaintiff and of the defendants, showed conclusively that the defendants put their names on the back of the note before its delivery to the payee for the purpose of lending credit to the instruvient with the payee by their signatures, and under such circumstances it is the settled rule in this State that they are liable as malcers, even although it be proved that they wrote their names on the back of the note as sureties for the maker, and without participating in the consideration for which the note was given. Melton v. Brown, 25 Fla. 461. 6 South. Rep. 211; McCallum v. Driggs, 85 Fla. 277, 17 South. Rep. 407. Under the rule adopted, the status of
III. The fourth assignment of error is. that the referee erred in finding that the third and fourth pleas of defendants were not fully sustained by the proofs. The third plea alleged in substance that the note sued on represented the individual indebtedness of Bishop to plaintiff, and defendants indorsed their names on the back thereof simply as an accommodation to Bishop, which fact was well known to plaintiff at the time of execution of the note and before parting with the consideration upon which the same was given; that at and after the maturity of the note and before the commencement of suit plaintiff had on general deposit to Bishop’s credit large sums of money sufficient to pay off and discharge said note in full, and wrongfully permitted Bishop to withdraw the same by checks and drafts, without applying the same to the payment of said note, in whole or in part, and without no
IV. The sixth assignment of error is that the referee erred in finding that the fifth plea of the defendants alleging payment was not maintained by the proof. It is sufficient to say as to this assignment that there was evidence to sustain the finding of the referee, and his finding upon
Y. The seventh assignment of error is that the referee erred in finding that the suit could be prosecuted in the name of the plaintiff, notwithstanding the transfer of the note to the St. Petersburg State Bank pending suit. The referee was warranted in finding that there had been no actual transfer of the note to the St. Petersburg State Bank, although an agreement for its transfer had been entered into between the banks, and the consideration therefor paid by the latter bank. The document signed by the First National Bank of Ocala contained a clause as follows: “We hereby agree to transfer and assign the said note and any judgment thereon to the said St. Petersburg State Bank, or order, or assigns, on demand,” and it was shown that there had been no such assignment. The legal title to the note still remained in the plaintiff, and it could therefore still maintain the suit in its name. McCallum v. Driggs, supra
. VI. The eighth assignment of error is that the referee erred in finding that' the plaintiff was, entitled to interest at1 two per cent, per-month after maturity of the note, and it appears that the referee did allow interest at that rate. The note was dated April 27th, 1891, due three months after date, and provided that it should bear “interest at the rate of two per cent, per month after maturity until paid.”r The declaration alleged that defendants “by their promisory note now overdue promised to pay to
VII. The eleventh assignment of error is that the referee erred in sustaining plaintiffs demurrer to the third plea puis darrein. mntmuancG. The effect of the plea was to allege that since the institution of suit the bank was placed in the hands of a receiver in accordance with the federal statutes, and so continued; that at the time of the appointment of the said receiver the note sued on was not an asset of the bank, and the suit was being prosecuted without the direction or authority of the comptroller of the currency of the United States, or the receiver. Tt will be observed that the plea merely denied that the note was an asset of the bank. It did not deny that' the suit was rightfully brought by the bank in the first instance, or that it still retained the legal title, and it followed from the allegations of the plea that if the note was not an asset of the bank the comptroller or reseiver were not concerned with it. The legal existence of a National Bank is not cut short by its insolvency and the appointment of a receiver therefor, but it still continues as an entity capable of suing and being sued, notwithstanding such appointment. Chemical National Bank v. Hartford Deposit Company, 161 U. S. 1. The plea, by its failure to deny, admitted that the bank rightfully brought the suit, whether for its own benefit or that of another, and the allegation that the suit was not pros-
Till. The twelfth assignment of error, alleging error in denying defendant’s motion, for new trial, is not argued except in connection- with the specific assignments already considered, and need not be further discussed.
IX. The last assignment of error complains that thé referee erred in entertaining jurisdiction of the cause, and in entering a joint judgment against plaintiffs in error and R. R. Snwoden, the contention being that no default was entered against Snowden until after the order of reference, and that the order of reference was made without his consent. It is not necessary to consider this assignment, as the judgment is reversed on another ground and the referee will have no further jurisdiction of the case unless the cause should be again referred to him by consent of the parties. Rev. Stats. Sec. 1234; State ex rel. Sanchez v. Call, 36 Fla. 305, 18 South Rep. 771.
For the error found the judgment will be reversed and a new trial granted. It is so- ordered.