This is an appeal from an order of the district court of Scott county denying the plaintiff’s motion for a new trial. The action was brought in the county of Mower, -and, on the application of the defendants How, Strait and Wilder, was removed by order of that court to Scott county. It is claimed in behalf of the plaintiff that the order of removal was erroneous, and that it is properly íeviewable on this appeal; both of which positions' are contested by the defendants. In Lehmicke v. St. Paul, S. & T. F. R. Co., 19 Minn. 464, the court reviewed such an order on an appeal from an order .denying a motion for a new trial, and in Curtis v. St. Paul, S. & T. F. R. Co., 20 Minn. 28, the same practice was pursued. While a review in this manner may not be quite logical, it is convenient and calculated to end litigation, and we think the practice which has obtained had better not be disturbed.
Upon the merits, it appears that three of the six defendants resided in Mower county. The suit was, therefore, properly brought in that county, and the only ground upon which the motion could have been properly granted was that the convenience of witnesses and the ends of justice would be promoted by the change. This is a matter which must rest largely in the discretion of the court to which the application is made. We have looked carefully into the affidavits used on the motion, and, although there was not a very strong case for removal, we are not prepared to say that the granting of the order was an abuse of discretion. It is objected by the plaintiff that the defend
The suit is brought upon two promissory notes made by William Richards, payable to the order of Richards, Wilder & Co., of which firm the maker and the other defendants are alleged to be members, and indorsed to the plaintiffs. Demand of payment of the maker at maturity, non-payment, and due notice thereof to Richards, Wilder & Co. are alleged in the complaint and put in issue by the answer. To prove the issue, the plaintiffs offered in evidence the instruments of protest of a notary public accompanying the notes, which, after stating the presentment, demand and refusal, and protest, certified that at the proper time “due notice of the foregoing presentment, demand, refusal, and protest were put in the post-office at Minneapolis, and directed, postage prepaid, as follows: Notice for William Richards, directed Austin, Minn.; Notice for Richards, Wilder & Co., directed Shakopee, Minn.; each of the above places being the reputed place of residence of the person to whom the notice was directed.’' Objection is taken to the form of the certificate in respect that it states that “due notice was put in the post-office,” and not that he, the notary, put the notice in the post-office. But we think the language sufficient. It would be a gross dereliction of official duty for the notary to certify to a fact which was not within his personal knowledge.
The next section provides that the notary’s instrument of protest accompanying the note “shall be received in all the- courts of the state as prima facie evidence of the facts therein certified, but any party may contradict by other evidence any such certificate.” But evidence of the non-receipt of the notice is, standing alone, incompetent to contradict the certificate. It might be competent or corroborating evidence if there were any testimony tending to show that the notice was not in fact deposited in the post-office, but not otherwise. If mere evidence of the non-receipt of the notice would justify the
It was in evidence that the notary public was a book-keeper in the plaintiff’s bank, but no inference can properly be drawn from this fact of any official delinquency on his part. It is also to be remarked, to avoid possible misconception, that the question is not raised by counsel in this case as to whether, the maker being a member of the firm which indorsed the note, his knowledge that it was not paid served as notice to the firm of its non-payment; and we have not considered that question.
One of the main controversies in the case grew out of this relation of the parties. The main facts upon which it arises, as shown by the evidence, are that the notes in suit were renewals of notes made and indorsed in like manner as the notes sued on. The origin and history of the notes are as follows: The firm of Richards, Wilder & Co. was engaged in the lumber business, and William Richards, a member of the firm, became its customer and bought lumber of it, for
This is not the case of an* attempted withdrawal by one partner of the partnership funds to pay his own private debts or for his private-benefit, nor does the transaction appear to be such on the face of the notes. On the contrary, the notes showed and indicated on their face the true relations of the parties to be in accordance with the facts as above stated. The notes were assets in the hands of the firm, and were negotiated by the firm for their full value, and the ordinary liability of indorsers was incurred by the indorsement. If the matter had rested here, we think it quite clear that the indorsers’ liability to pay the notes would have been fixed by taking the proper steps to charge them at their maturity. These notes were several times renewed, and, as is claimed by the defendants answering, without their knowledge or consent, except perhaps as to the first renewal. The manner of effecting the renewal was this: William Bichards made a, new note, payable to the order of the firm, and procured the clerk to indorse the firm name upon it, and then, without any other delivery to the firm, he took it to the bank, paid the interest in advance,delivered it, and took up and retained the old note. There was evidence tending to show that the plaintiff knew of the manner in which this was done, and in some instances, and with respect to one of the notes sued on, the new note was drawn, signed and indorsed in the bank, in the presence of the plaintiff, the maker and the clerk being there present.
As there must be a new trial, it is unnecessary to notice the other alleged errors and irregularities, as they are not likely to be repeated, except to add that an error arising from the denial of a motion by the defendant to dismiss for defect of proof when the plaintiff rests, is not available to the defendant if he goes on with the case, and the defect is supplied by proof subsequently made.
Order reversed, and new trial granted.