53 Neb. 824 | Neb. | 1898
In the district court of Dixon county the Farmers State Bank of Emerson, Nebraska, recovered a judgment against J. F. and R. R. Myers on certain promissory notes. To review this judgment the Myerses have filed here a petition in error.
1. The first argument is that the verdict is not supported by sufficient evidence. The bank in its petition
2. A second argument is that the petition does not state a cause of action. The argument is founded upon the fact that the petition does not expressly allege that the bank is the owner of the notes. The petition alleges the execution and delivery of the notes by the Myerses to Kirwin and then' alleges: “On the same day * * Kirwin indorsed said note and delivered it to plaintiff. * * * The following is a.copy of said note with the indorsement thereon.” Here follows copy of the note, and then the indorsement in this language: “For value received I hereby guaranty the payment of this nole. * * * John Kirwin. No part of said note has been paid and there is due the plaintiff from defendants on this note the sum of $--.” We think these recitals of the petition are equivalent to an express averment that the plaintiff was the owner and holder of the note. The averment that the owner and holder of the note indorsed and delivered it to the plaintiff implied that he thereby transferred the title of the instrumént indorsed.
8. During their deliberation the jury came into court and stated that they had found from the evidence that the mortgagor had removed the mortgaged horse out of the state and that the plaintiffs in error had requested the bank to cause this mortgaged horse to be seized aud returned to the state, and that the bank had neglected to do so, and they then propounded to the court tlr.s question: “Now the point of law upon which we would like to be informed is as to whether said J. F. Myers is still responsible after making this request.” The court answered the query in writing as follows: “The evidence shows that all signers of the notes aré makers, and the answer to your question is, yes.” This action of the court is now assigned for error. The first complaint is
Judgment affirmed.