38 Cal. 560 | Cal. | 1869
The defects in the record have been cured. By the matter certified by the District Court, the statement appears to have been regularly filed.
The action is upon a promissory note, executed by defendant, Reynolds, in favor of Mahe and E. A. Lawrence, and alleged in the complaint to have been endorsed by Lawrence. A copy of the note and endorsement is annexed to the complaint. The complaint is not verified, nor is the answer, but the answer contains a general denial of all the allegations of the complaint.
“When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a
The action is not against Lawrence upon his endorsement, but upon the note against the maker. The endorsement is alleged to show a deraignment of title to the instrument sued on, and not as a basis upon which the action rests. The endorsement for the purpose here alleged is not a written instrument upon which an action is brought. The endorsement was a matter between Lawrence and Mahe, to which the defendant is in no way privy, and he is not presumed to know whether the endorsement is genuine or not. There seems to be no good reason for requiring him to deny, under oath, a matter of which he is not presumed to have any knowledge. Had the action been against Lawrence, on his endorsement, as to him, it doubtless would have been upon a written instrument within the meaning of the Act.
We think issue was properly taken on the endorsement, and the issue was material.
It is said that Mahe could have sued alone, without any endorsement, and recovered, for the objection only goes to a want of parties, and no demurrer being interposed, the objection was waived. But the complaint is not open to a demurrer on that ground, for the endorsement is alleged, and upon the face of the complaint there is no want of parties. The defendant was entitled to take the right of recovery as alleged. The complaint deraigned a right to recover through the endorsement, and the defendant took issue on it. Proof was necessary on the issue. The motion to change the place of trial was in time, and was not waived by serving an answer at the same time.
Judgment and order denying new trial reversed, and new trial granted.