15 W. Va. 90 | W. Va. | 1879
delivered the opinion of the Court:
In §587 Drake states this as his conclusion : “ That,' as a general rule, the maker of a negotiable note should not be charged as garnishee of the payee under an attachment served before the maturity of the note, unless •it be affirmatively shown, that before the rendition of the judgment the note has become due, and was then still the property of the payee.”
Daniel in his work on negotiable instruments §784 and §812 states, that when the payee’s name is endorsed on the negotiable note, this raises a presumption that such endorsement was made before its maturity, and that the holder acquired it bona fide for full value, in the usual course of business, before maturity, and without notice of any circumstance impeaching its validity. But he further says: “ That the presumption as to the time of acquiring the instrument is not a strong one. The endorsement is almost invariably without date, and without witnesses. The transaction by delivery merely leaves no foot-print upon the paper by which the time can be traced. And the presumption in favor of the holder at the time of the transfer, being without any written corroborative testimony, is of the slightest nature, and open to be blown away by the slightest breath of suspicion.”
The appellants’counsel insists that this, record shows many reasons for suspecting that the plaintiff, A. S. Hatch, was not the bona fide owner of this note, and that it had not been transferred to him for a valuable consideration either before or since it became payable. The decree in this case complained of was not rendered till after the maturity of this note. And so far from its having been determined in the attachment cause,' that the makers of this note could not be liable to pay this note to the attaching creditor, Curry, the court has required the makers to answer his bill. This responsibility of the makers of this note to the attachment-creditor is t husin
The error of the circuit court was in expressing such an opinion and deciding the case when one of the parties, Curry, was not before the court. For this reason the decree of the circuit court complained of must be reversed
The appellants’ counsel also insists, that as the summons and return have been copied on the record by the clerk, and it appears from the sheriffs return that .Pliny Fisk was not found, and had not been served with process; and as he never filed any answer, the court in this decree erred in reciting that process was served on all the defendants, and in taking the bill for confessed as to him. The appellees insist, that this recital in the decree is conclusive of the fact that process was served on him. He is before this court as an appellee who has been served with the process issued by our clerk, and the case differs but little from the case of Arnold v. Arnold, 11 W. Va. 457, except that in this case the parties not served with process, so far as appears, but who were recited in the decree below to have been served with process, appealed in the Appellate Court and filed a waiver of regular service in the court below and a release of errors there, and asked an affirmance of the decree. In that case the decree below was affirmed. Whether on this point this case can be distinguished from that, it is useless decide. In this case the defendant, Fisk, has not asked
The decree of the circuit court of Kanawha county of June 15, 1878, must be reversed, set aside and annulled; and the appellants must recover of the appellee, A. S. Hatch, their costs about their appeal in this court expended ; and this cause must be remanded to the circuit court of Kanawha county with directions to grant leave to the plaintiff to amend his bill in a reasonable time, to be fixed by that court, and to make Charles B. Curry a party defendant in said cause; and with further directions to proceed with said cause according to the rules and principles laid down in this opinion, and further according to the rules and principles governing courts of equity.
Degree Reversed. Cause Remanded.