Holland v. Commercial Bank

22 Neb. 585 | Neb. | 1888

Reese, J.

On the 12th day of February, 1887, defendant bank commenced its action in the district court of Saline county against John Holland and Martin Holland, upon a promissory note for $1,257.20 made by said John and Martin Holland to Lawrence Holland, and which said note it was alleged had been endorsed to the bank by Lawrence Holland.

John Holland and Martin Holland filed an answer denying the indebtedness and denying that the bank was the owner of the note.'

Lawrence Holland, plaintiff in error here, made application to the court to be made a party to the action, and alleged that he was then the owner of the note, entitled to the proceeds thereof, and that the bank had no interest therein. The application to be made a party defendant was overruled, and he now prosecutes error thereon to this court. Pending the proceedings in error here, defendant in error bank filed an answer to the petition in error, in the form of a plea in abatement, by which it is made 'to appear that after the ruling of the district court upon the application of plaintiff in error, he had appeared in the district court of Cass county, wherein an action was pending against him by defendant bank, and by leave of court filed his answer alleging his ownership of the note in question and 'the conversion thereof by the bank, by which he was damaged the full amount of the principal and interest thereon.

The question then presented is, was the filing of his answer in the district court of Cass county, setting up the conversion of the note in question and demanding judgment for the amount thereof, an abandonment of his proceedings in error here? Under the circumstances plaintiff evidently had the right to select his own forum in which to litigate the question of his ownership of the note. He had the right to intervene in the case pending in Saline county and assert his title to the property and his right to the proceeds. This right is clearly given under sections 41 and 50a of the civil code. Or he had the right at his option to charge the bank with conversion of the note by way of answer in the suit pending in the district court of Cass county. He chose the former forum, and should have been permitted to intervene. The decision of the district court, refusing him the right so to do, was erroneous; but, for reasons no doubt entirely satisfactory to himself, he then elected to present and file his answer in the case pending in the district' court of Cass county, wherein the bank was plaintiff, and he was defendant. The issue thus presented being now pending in that court, he clearly would not be entitled to both remedies.

Neither would he be permitted to maintain both defences at the same time. He must, therefore, be taken to have waived the error of the district court of Saline county, and to have abandoned his claims there presented, as well as his proceeding in error in this court.

It follows that the petition in error must be dismissed, which is done.

Judgment accordingly.

The other judges concur.