75 So. 11 | Ala. | 1917
On account of adverse rulings of the court the plaintiff took a nonsuit with bill of exceptions. It is clear from an inspection of the record that on the last ruling on demurrer to the complainant it became necessary for plaintiff to suffer non-suit. This ruling is not reserved for the decision of the Supreme Court by bill of exceptions, but by an appeal on the record, as in other cases. The statute is as follows: “If, from any ruling or decision of the court on the trial of a cause, either upon pleadings, admission or rejection of evidence, or upon charges to the jury, it may become necessary for the plaintiff to suffer a nonsuit, the facts, point, ruling, or decision may be reserved for the decision of the Supreme Court by bill of exceptions or by appeal on the record as in other cases.” — Code 1907, § 3017; Gen. Acts 1903, p. 34.
This statute has been recently construed by our court in the cases of Priebe v. Southern Railway Co., 189 Ala. 427, 435, 66 South. 573, and Engle v. Patterson, 167 Ala. 117, 52 South. 397. In Alabama Great Southern Railroad Co. v. Altman, 191 Ala. 429, 67 South. 589, demurrer to the original complaint having been sustained and plaintiff having amended his complaint, it was held that the action of the trial court in sustaining the demurrer to the original complaint was not for review, when the nonsuit with bill of exceptions was taken in consequence of the court’s subsequent rulings on the evidence. In Berlin Machine Works v. Ewart, 184 Ala. 272, 63 South. 567, the Engle Case was discussed; and it was declared that where the record shows that the adverse rulings of the court on the pleading — on demurrers to both pleas and replications — were the cause of the nonsuit, such rulings will be reviewed on appeal. In Ex parte Martin, 180 Ala. 620, 61 South. 905, speaking of the necessity of the plaintiff to suffer the nonsuit, the court said: “In support of this contention it is urged that section 3017 of the Code does not apply, for the reason -that it was not made to appear that ‘it became necessary for plaintiff to suffer a nonsuit.’ It is very true that, in order to revise rulings of courts after voluntary nonsuit, this much must be made to appear by the record proper, or by the bill of exceptions, because it is upon this condition only that the statute authorizes the review on appeal. It does not
Does the record in the instant case show that sustaining the demurrer to the complaint as amended went to the “whole right of action,” or that it extended only to the mere form in which the action is brought?
The first count of the complaint declared on two promissory notes made, and payable on the dates indicated, with interest at 6 per centum. On October 27, 1913, the defendant demurred on the several grounds assigned, from 1 to 6, inclusive.- By the minute entry of this date it is recited: “Came the parties by their attorneys; by leave of the court first had and obtained", defendant withdraws plea and demurs to the complaint, and plaintiff confesses demurrers 5 and 6.”
After this confession of said grounds of demurrer, to the effect that count 1 did not allege that said notes were protested for non-payment at maturity, nor that defendant had any notice of the nonpayment or of the dishonor-of said notes at maturity, on October 27, 1913, plaintiff amended said count by setting out the notes on which suit was brought. Said notes were dated at Atlanta, Ga., were payable to the order of Ben P. Barbour, in amounts indicated, stipulated interest from date at the rate of 6 per cent, per annum, and contained the usual provisions for
“N. J. Morphy.”
“Ben F. Barbour, without recourse.”
“T. H. Spencer.”
“C. A. Wiekersham.”
Up to this stage of the pleading, as to count' 1, the subsequent taking of the nonsuit presented no question for review, since plaintiff had confessed grounds of demurrer thereto. To count 1 as amended defendant’s demurrers were overruled. Thereafter, by leave of the court, plaintiff again amended said count by striking the copies of said notes and indorsements thereon, made a part thereof by the first amendment. Defendant refiled demurrers that were overruled. Thus was count 1 restored to the form in which it was originally filed, and in which it stood when demurrers thereto were confessed by the plaintiff. Later, the court sustained demurrers to the complaint as a whole.
The second count as originally filed reads: “The plaintiff claims of the defendant $8,000 due by two promissory notes each in the sum of $4,000, made by the California Consolidated Mines Company and payable to Ben F. Barbour, which several notes, before negotiation by said Barbour were indorsed by the defendant, and were by the said Barbour indorsed to the plaintiff. And the plaintiff avers that the said two notes were so indorsed by
The following was on May 27, 1914, added to said count 2 by way of amendment:
“Plaintiff avers: That under the laws of Georgia, section 3688 of the Code of Georgia, which reads as follows: ‘Sec. 3688 (2781). Protest and Notice. — When bills of exchange and promissory notes are made for the purpose of negotiations, or intended to be negotiated at any chartered bank, and the same are not paid at maturity, notice of the non-payment thereof, and of the protest of the same for non-payment, or nonacceptance, must be given to the indorser thereon within a reasonable time, either personally or by post (if the residence of the indorser be known), or the indorser will not be held liable thereon; but it shall not be necessary to protest in order to bind indorsers, except in the following cases, to-wit: 1. When a paper is made payable on its face at a bank or banker’s office. 2. When it is discounted at a bank or banker’s office. 3. When it is left at a bank or banker’s office for collection; and in all such cases, days of grace shall be allowed’ — it was not necessary to protest the. said note in order to bind the defendant, as an indorser. That under the laws of Georgia, section 3682 of the Code of Georgia: ‘Sec. 3682 (2776). Bonds, etc., Negotiable. All bonds, specialties, or other contract in writing for the payment of money or any article of property, and all judgments and executions from any court in this State, are negotiable by indorsement, or written assignment, in the same manner as bills of exchange and promissory notes. No indorsement or assignment need be under seal’ — the instruments sued on and described in the complaint are negotiable; and that under the laws of Georgia, section 3694 of the Code of Georgia, which reads as follows: ‘Sec. 3694 (2785). Right of Bona Fide Holder. The bona fide holder for value of a bill, draft, or promissory note, or other negotiable instrument, who receives the same before it is due, and without notice of any defect or defense, shall be protected from any defenses set up by the maker, acceptor, or indorser, except the following: 1. Non est factum. 2. Gambling, or immoral and illegal consideration. 3.*617 Fraud in its procurement’— plaintiff is protected from any defense which may be set up by defendant, except non est factum, gambling or immoral or illegal consideration, or fraud in the procurement of the said notes described in the complaint, and plaintiff avers that he received the said notes described in the complaint before they were due, and without notice of any defect or defense, and that under the decisions of the Supreme Court of Georgia indorsers of a promissory note not negotiable at a chartered bank are liable on their indorsement without notice of nonpayment, and that the notes sued on in this case were not negotiable at any designated place, and that the residence of the maker of the said notes described in the complaint, was at the time of the purchase of said notes by plaintiff, and at the time of their maturity unknown to plaintiff and that his best information was that it was in the state of Illinois. * * * Which said notes being identical in form are in words and figures:
“ ‘$4,000.00. Atlanta, Ga., Dec. 8, 1909.
“ ‘Ninety days after date we promise to pay to Ben F. Barbour or order four thousand dollars for value received and payable at-, with interest from date at the rate of 6 per cent. per annum with all costs of collection including 10 per cent, attorney’s fees. And each of us, whether maker or indorser, hereby severally waives and renounces for himself and family any and all homestead or exemption rights he may have under and by virtue of the Constitution or laws of the state of Georgia or the United States as against this note or any renewal thereof.
“ ‘ [Signed] California Consolidated Mines' Co.,
“ ‘By N. J. Morphy, Pres’t.’
“Each of said notes bearing on the back the following indorsement: ‘N. J. Morphy, Ben F. Barbour, without recourse. T. H. Spencer. C. A. Wickersham.’ ”
It is averred that the instruments sued on were received by the plaintiff before they were due, and without notice of any defect or defense; that under the law of Georgia governing such matters, indorsers of promissory notes not negotiable at a chartered bank are liable on their indorsement without notice of nonpayment, and that the notes sued on in this cause were not negotiable at any designated place; and that the residences of the makers of said notes were, at the times of purchase and maturity, unknown to plaintiff; and that said instruments were indorsed
Let the judgment of the circuit court be reversed, and the cause remanded.
Reversed and remanded.