The opinion of the court was delivered, by
The only question presented in this case is as to the right of the plaintiff in error, who was the plaintiff below, to maintain the action. Two phases of the question are presented : (1) As to the jurisdiction of the court over the persons of the defendants; (2) as to the right of the plaintiff to maintain the action in any event. The action is based upon a negotiable note executed by the defendants in favor of one 0. W. Culp, by Culp indorsed and transferred to C. W. McDonald, and by McDonald indorsed to the order of the plaintiff, Linney. To the petition of the plaintiff the defendants answered : (1) A general denial; (2) that the note was materially altered after its execution, without the knowledge or consent of the defendants, by erasing therefrom the name of one of the makers; (3) failure of consideration; (4) that the plaintiff was not the bona fide owner and holder of the note, and was not the real party in interest — that one C. W. McDonald was the real owner of said note, and that the same was’ transferred by McDonald to the plaintiff solely for the purpose of enabling suit to be brought against defendants in Cloud county (of which county said McDonald was a resident), and summons served on them in other counties. To such answer the plaintiff replied, denying all said allegations, and alleging cer
Whatever may be said as to the jurisdiction of the persons of the defendants at the time of the commencement of the action in the district court of Cloud county, we think any objection on that ground has been waived by the subsequent proceedings had in the case at the instance of the defendants. If McDonald, upon whom the summons was served in Cloud county, was not a proper party defendant to the action, and was brought in collusively, and merely, for the purpose of enabling a summons to be issued out of the district court of that county and served upon the defendants in Jewell and Mitchell counties, the defendants could successfully attack the jurisdiction so obtained. This they attempted to do by a motion, which was sustained by the district court; but on proceedings in error the decision was reversed by the supreme court, upon the ground that, as jurisdiction depended upon the plaintiff’s ownership of the note, the question could not be raised and decided upon motion. (Linney v. Thompson, 44 Kan. 765.)
The action was commenced April 9,1887. After its return from the supreme court, and on January 25, 1891, the defendants filed their motion asking that the place of trial be changed to Ottawa county, for the reason that Hon. F. W. Sturges, who was then judge of the district court of Cloud county, had been of counsel in the case. This application was granted,
The facts in this case bring it clearly within the rule laid down in the above cases. Upon the trial, the defendants invoked the judgment of the court upon defenses made to the plaintiff’s cause of action. Had the decision thereon been in their favor, they
“The question raised by the defendants in their answer as to the ownership of the note was not one going to the jurisdiction, but was a defense attacking the very merits of the case. We insisted that Linney was not the owner of the note, and this contention on the part of the defendants was proven to the satisfaction of the jury, and they expressly found that the plaintiff did not own the note, and there was a further finding to the effect that C. W. McDonald was the owner ; and under this finding of the jury Linney could not, in Cloud county, or in any other county, maintain an action against the defendants.”
Apart from the question of jurisdiction, can the plaintiff maintain this action? We think he can. Being a negotiable note, McDonald’s indorsement vested the plaintiff with the legal title thereto. In law, for the purpose of suing thereon, that made him owner. If transferred after maturity, as is claimed, it would be subject in the hands of the plaintiff to all equities and defenses to which it was subject in the hands of McDonald. For the purpose of establishing two of the defenses set up —a failure of consideration, and a material alteration of the note — the defendants had a right to show that the plaintiff took the note under circumstances which would make such defenses available against him. Beyond that, however, it was immaterial to inquire. Whatever cause of action existed was, by the indorsement and transfer of the note, vested in the plaintiff. The payee and C. W. McDonald (the plaintiff’s indorser), being,parties to
The supreme court of this state has recognized and applied the rule, in the case of a written assignment
“The account was assigned and transferred in writing to him [the assignee] , and to this writing Carroll [the assignor] had attached his signature. Where an account is assigned absolutely, so that the assignee becomes in fact the owner thereof, he is the real party in interest. As Carroll had transferred in writing this account to Eldridge, it was immaterial to Krapp [the defendant] whether he had given it to him or sold it to him. After such transfer and assignment, Eldridge was the only person entitled to maintain an action therefor. • Of course Eldridge, as assignee, had no rights which his assignor did not possess.” See, also, Walburn v. Chenault, 43 Kan. 352.
It is assumed by counsel for defendants that the supreme court has expressly decided that this action could not be maintained by the plaintiff, if he was in fact not the real owner of the note. Some of the language used, in the opinion when the case was before that court may be capable of that construction; but certainly no such question was before the court, or really considered by it. If the ownership of the plaintiff depended upon the existence of certain facts, and such facts were shown not to exist, his action would, of course, necessarily fail. But here the facts alleged as evidence of ownership are the written indorsement and transfer of the note to the plaintiff. Such indorsement and transfer are admitted, their legal effect only being a subject of dispute. The supreme court has never said that the indorsee of a negotiable note could not maintain an action thereon in his own name, against the maker, under the circumstances of this case.
The special findings of fact show that the general verdict was based solely upon the finding that the
For the reasons above given, the judgment must be reversed, and the case remanded for a nbw trial.