232 N.W. 913 | S.D. | 1930
On March 23, 1925, Oakdale Milling Company of Oakdale, Neb., gave to plaintiffs a check for $1,392 on defendant bank. Plaintiffs at once deposited it in a South Dakota bank and it was without delay forwarded to defendant bank in Oakdale, Neb., for payment. The bank held the check until May 20th, when it indorsed it “Presented for payment May 20th, and payment was refused. No funds,” and returned it'to the South Dakota bank through which it had been sent. Plaintiffs commenced an action against defendant bank, service of the summons being made in 'Antelope county, Neb., on May 24, 1926. Defendant made no appearance, and on October 9, 1926, upon a complaint alleging the foregoing facts and nothing more, the court gave a personal judgment against defendant for the amount of the check, with interest from its date and costs of the action. On October 2, 1926, a garnishee summons in the action was served upon appellant, Bert Humphrey, who answered, alleging that he had given his negotiable promissory note for $2,505 to White River State Bank, but did not know whether that bank or defendant bank or some one else was now the holder of the note. Plaintiff did not take issue on the answer. Thereafter a stipulation was entered into between the attorney for plaintiffs and the attorney for defendant to the effect that on October 9, 1926, judgment had
The complaint against the principal defendant is insufficient to support any judgment. The check did not operate as an assignment of any part of the funds of Oakdale Milling 'Company in defendant bank, if in fact the milling company ever had any funds there. Rev. Code 1919, § 1891. The complaint does not even alleged that Oakdale Milling Company at the time of drawing the check or at any time subsequent thereto had any funds whatever in defendant bank. There is nothing in the complaint from which it can be inferred that plaintiff sustained any prejudice whatever by reason of the length of time that the defendant bank held the check before returning it. In any event the bank was not liable to the holder of the check unless and until it accepted or certified the check. Rev. Code 19x9, § 1891; Gay v. Sundquist, 42 S. D. 328, 175 N. W. 190; Harrison State Bank v. First National Bank of Omaha, 116 Neb. 456, 218 N. W. 92, Independent Oil Men’s Ass’n v. Fort Dearborn National Bank, 311 Ill. 278, 142 N. E. 458. The insufficiency of the complaint is not in a mere defect of form or defective statement of facts that may be supposed to exist, but consists in a failure to state facts that show any cause of action whatever, and indeed the complaint may almost be said to state facts showing affirmatively that no cause of action exists.
But passing this inquiry and taking paragraph 4 of the stipulation as controlling and overriding everything else in the stipulation and passing also the further and very serious question as to1 whether an attorney has any authority to stipulate away a vital and conclusive defense of his client, we proceed to consider the question stated in paragraph 4 of the stipulation, whether under the provisions of section 2471 of the Revised Code 1919 the garnishee is liable by reason of 'having executed a negotiable promissory note. Section 2471, so far as material to this case, reads:
The statute makes no distinction between cases where the garnishment process is served before maturity or where it is served after maturity of a negotiable instrument. While the reasons for exempting one from liability as garnishee by reason of his having made a'negotiable note, which is not overdue, may be stronger than those which justify exemption from liability where the paper is past due, yet sufficient reason exists for exemption in the broad language of our statute, declaring that no one shall be liable as
We hold that Rev. 'Code 1919, § 2471 means what it says, and that courts are not authorized by judicial construction to legislate into the section an exception making one liable as garnishee on an indebtedness evidenced by a negotiable note, provided garnishment process is served on him after maturity of the note. The statute says he can not be adjudged liable as garnishee by reason of having made a negotiable note.
The judgment appealed from is reversed.