34 Ind. App. 107 | Ind. Ct. App. | 1904
Suit by appellee, as indorsee upon a promissory note payable at a bank in Pittsburg, Pennsylvania, to the order of the Muncie Land Company. This is the second appeal (Midland Steel Co. v. Citizens Nat. Bank (1900), 26 Ind. App. 71). The note in suit is as follows: “Midland Steel Company. $2,000. Muncie, Indiana, April 23, 1896. Pour months after 'date we promise to pay to the order of the Muncie Land Company $2,000, value received, negotiable and payable without defalcation or discount, at the Union Rational Bank, Pittsburg, Pa., with interest at six per cent, per annum from date. R. J. Beatty, president.” The amended complaint avers that appellee is a banking corporation at Kokomo, Indiana; that appellant is a manufacturing corporation organized under the law's of Indiana, and with its office and place of business at Muncie, Indiana; that prior to the execution of the note in suit appellant adopted the name and style of R. J. Beatty, president, in and by which to execute the commercial obligations, bills of exchange, and promissory notes in the usual course of appellant’s business; that, on the date named, appellant, by and in the name of R. J. Beatty, president, executed to the Muncie Land Company the above note, whereby appellant promisecf.to pay the land company the amount named as therein specified; that after the execution of the note, and before it became due, the Muncie Land Company sold, transferred and indorsed the same, in writing, and for a valuable consideration, to appellee; that appellee purchased the note in the usual course of business, without notice of any defense; that at the time the note was executed, and up to the present time, the note was and is negotiable under the rules of the law merchant, as the law was determined and adjudged by the highest judicial
The complaint avers that, at and prior to the execution of the note in suit, appellant adopted and used the name and style of R. J. Beatty, president, in and by which to execute notes in the usual and ordinary course of its business; that, on the date named, appellant, by and in the above name, “executed and delivered to the Muncie Land Company” its promissory note, a copy of which is set out in the complaint; that, by the terms of the note, appellant, by the above name, promised to pay the land company the sum mentioned, for value received; that after the execution of the note, and before it became due, the payee, for a valuable consideration, sold and transferred the same by written indorsement to appellee, who took the same in the usual course of business, without notice of any defenses thereto.
It is seen that' it is averred that appellant executed the note, which implies both a signing by appellant and a delivery by appellant. In that respect the complaint shows a complete contract. Nicholson v. Combs (1883), 90 Ind. 515, 46 Am. Rep. 229; Prather v. Zulauf (1871), 38 Ind. 155. "Where a pleading avers the execution of a promissory note, and gives a copy, it need not otherwise show a promise to pay. Reynolds v. Baldwin (1884), 93 Ind. 57.
lt is also argued that the law of Pennsylvania, where the note is payable, is not well pleaded. The note sued on is not governed by the law merchant. It is not payable at a bank in this State, and is subject to defenses in the. hands of a bona fide holder for value. It is, no doubt, true that the complaint, aside from any averments as to the law of Pennsylvania, states a cause of action upon the note as a non-negotiable instrument. But if the complaint is held good upon that theory only, the demurrers to appellant’s answers should not have been sustained. This is the effect of the ruling upon the former appeal. Midland Steel Co. v. Citizens Nat. Bank, supra. However, the theory of the pleading is that the note is negotiable under the laws of the State of Pennsylvania, and it must be good upon the theory upon which it proceeds, or it will not be good at all.
A notary public is a public officer, and possesses certain powers under the common law by virtue of his office. We must presume that the common laur exists in Illinois, and of the common-law powers of a notary we may take notice. But under the common law a notary had no authority to administer oaths. Teutonia Loan, etc., Co. v. Turrell (1898), 19 Ind. App. 469, 65 Am. St. 419; Berkery v. Reilly (1890), 82 Mich. 160, 46 N. W. 436; Keefer v. Mason (1865), 36 Ill. 406; Trevor v. Colgate (1899), 181 Ill. 129, 54 N. E. 909 ; Proffatt, Rotaries, §24; John, American Rotaries (2d ed.), §79. Ror has a notary at the common law any authority to take depositions. “The common law,” said the court in Burtt v. Pyle (1883), 89 Ind. 398, “did not authorize a notary public to take depositions; such authority is conferred only by statute.” The statute of this
Section 464 Bums 1901, §460 R. S. 1881, provides: “Certificates or instruments, either printed o>r written, purporting to be the official act of a notary public of this State, of the District of Columbia, or of any other state or territory of the United States, and purporting to be under the seal and signature of such notary public, shall be received as presumptive evidence of the official character of such instrument and of the fadts therein set forth.” The certificate of the notary complies with the requirements of §434 Burns 1901, §430 E. S. T881, and had the deposition been taken before a notary in this State, the certificate manifestly is sufficient. It is under the seal and signature of the notary, and this, under the statute, entitles it to be received as presumptive evidence of the official character of the instrument and also of the -facts set forth in the certificate. The certificate states that the person before whom the deposition was taken is a notary pijblic within and for Cook county, Illinois.
It is true we can not presume that a notary public in Illinois has authority to administer oaths and to take depositions. . But under §433 Burns 1901, §418 R. S. 1881, is it necessary that a notary public should have authority under .the laws of that state to take a deposition which is to be. used in the courts of this State ? That section provides: “Depositions of witnesses, taken within or without this State, may be taken, according to the regulations hereinafter provided, before any judge, justice of the peace, notary public, mayor or recorder of a city, clerk of a court of record, or com
A notary public is a public officer, not merely in the state from which he receives his appointment, but an officer recognized by all the states. His seal need not be authenticated; it proves itself. The statute recognizes a notary public in another state as an officer before whom a deposition may be taken. It has conferred upon him that authority, and it is immaterial whether the foreign state has conferred upon him such authority or not. If a court should designate some one as a commissioner to take a deposition in a foreign state, it would be immaterial whether or not such foreign state had conferred authority upon commissioners to take depositions. Such state might, by designating before whom depositions could be taken, exclude commissioners. -But that would not affect the right of the commissioner to act. The same is true of a notary public designated by the statute. Our statute gives authority to a notary to take a deposition, and to administer the oath to the deponent. And by providing that a deposition without the State may be taken before a notary public, the statute confers upon the foreign notary the same authority in the matter of taking a deposition as that given a resident notary to take a deposition in this State. The statute requires that such- deposition shall be taken according to the requirements of our statute, and the certificate shows that
Counsel for appellant cite the case of Teutonia Loan, etc., Co. v. Turrell (1898), 19 Ind. App. 469, 65 Am. St. 419, as controlling in the case at bar! In that case it was held that whether a notary public in Ohio has power to take affidavits is a matter of which the courts of this State can not take judicial notice; and an affidavit in attachment taken by a notary in that state was held insufficient for the reason that no attempt had been made to comply with the statute (§483 Burns 1901, §475 E. S. 1881), which expressly provides how an affidavit taken in another state may be received and used in the courts of this State. We adhere to the decision in that case, but fail to see anything in it controlling in the case at bar which is governed by another and different statute.
Objection is made to certain evidence introduced, but, upon a careful consideration of the questions thus raised, we fail to find any reversible error. There was a trial by the court, a special finding of .the facts, with conclusions of law; and, from the whole record, we think the case was fairly tried and determined upon its merits.
Judgment affirmed.