170 P. 12 | Mont. | 1918
delivered the opinion of the court.
In January, 1915, the J. I. Case Threshing Machine Company, a corporation, commenced this action to enforce payment of three promissory notes. The defendant first interposed a general demurrer, which was overruled, and then answered. At the time the cause was set for trial, defendant and his counsel failed to appear, and judgment was rendered in favor of plaintiff for
The order indicates that the trial court considered defendant’s showing sufficient, and no complaint is made that the court imposed costs. There was not before the court any application for a continuance or for leave to file an amended answer, and the imposition of terms affecting those subjects was clearly not authorized or justified. For this reason, defendant was at liberty to treat the order as, in effect, denying bis motion.
The motion should have been granted, for the complaint does not state facts sufficient to constitute a cause of action in favor
It is true that the notes are payable to J. I. Case Threshing Machine Company (incorporated), but they are also drawn to bearer, and such notes pass from hand to hand by mere delivery, (See. 5878, Eev. Codes.) It was not absolutely necessary for plaintiff to allege that it was the owner of the notes at the time suit was commenced. A holder of a negotiable instrument may maintain an action for its collection (sec. 5899, Eev. Codes); but to state a cause of action in favor of plaintiff, it was necessary to disclose some right in it by virtue of which it maintains the action and upon the faith of which defendant, by paying the judgment, may be fully discharged of his obligation and relieved of the annoyance of further litigation at the hands of someone else who may hereafter appear in possession of the notes. The general rule is well stated in 8 Corpus Juris, 885, 886, as follows: “Plaintiff must show title to the bill or note in suit or privity between himself and defendant, or that as the holder thereof, he has the legal right to maintain the action and to recover thereon. * ■ * * In an action by the payee against the
Counsel for respondent are in error in assuming that this court decided in Meadowcraft v. Walsh, 15 Mont. 544, 39 Pac. 914, that an allegation of ownership of the note sued upon is surplusage. The question there determined was one of substantive law — not one of pleading. The complaint in that action alleged that each of the notes had been duly indorsed and delivered to plaintiff, and that plaintiff was then the owner and holder thereof. •
The judgment and order are reversed and the cause is remanded for further proceedings.
Reversed and remanded.