6 App. D.C. 433 | D.C. Cir. | 1895
delivered the opinion of the Court:
This action is by a holder or indorsee of a promissory note against the maker and two indorsers thereof, to recover the amount of the note and cost of protest. This would have been a misjoinder of parties, according to the common law rules of pleading, but such joinder is authorized by section 827, Rev. Stats. D. C.; Comp. Stats., ch. 55, sec. 18, p. 444; Burdett v. Bartlett, 95 U. S. 637 We perceive no ground of objection to the joinder of parties, or to the separate judgment that has been rendered against one of the indorsers of the note. Such judgment is authorized by the express terms of the statute.
The objection most urged by the appellant, Thomas E. Young, is that taken to the sufficiency of the affidavit filed by the plaintiff, Brainard H. Warner, with his declaration, under rule 73 of the Supreme Court of this District. The declaration contains a special count on the promissory note and its indorsements, and also the common money counts in assumpsit. The defendant pleaded the general issue of non assumpsit, without affidavit verifying the plea, under the rule. Whereupon the plaintiff moved for judgment under the rule, for want of affidavit of defence; and that motion was granted and the judgment entered against the appellant, one of the indorsers of the note.
Rule 73 requires of the plaintiff, in order to entitle him to judgment under the rule, where the defendant does not plead with sufficient affidavit of defence, that he should “file at the time of bringing his action, an affidavit setting out distinctly his cause of action, and the sum he claims to be due, exclusive of all off-sets and just grounds of defence.”
The affidavit filed by the plaintiff at the time of bringing his suit, describes the note and the parties thereto, maker and indorsers, and the manner of transfer to the plaintiff, and then states: “ That at. its maturity the said nóte was duly presented for payment, and was dishonored, and pro
To this affidavit it is objected, that the averments that the note was duly presented for payment, and was dishonored, whereof due notice was given, are but statements of legal conclusions, and not the statement of facts, and therefore the affidavit is insufficient to gratify the rule. But to-this we do not agree.
We think the affidavit is in all respects sufficient. It states fully and distinctly the cause of action, and the sum claimed to be.due thereon ; and with respect to the facts of demand, and notice of non-payment, the affidavit is sufficiently explicit and certain to inform the court and the defendant of the facts that the proper proceedings had been taken to fix the liability of the indorsers on the note. It is not required that the primary facts in detail should be stated in the affidavit, but only such clear and comprehensive facts as are sufficient to impart notice to the court and the defendant of the plaintiff’s right of action and the amount thereof. To say that a note was duly presented and due notice of dishonor given, is only equivalent to saying that the note was, at the time when due, presented to the maker for payment, and that he refused payment, and thereupon notice of that fact was communicated to the indorsers. This is the meaning in fact of duly presented and due notice of dishonor given. And this to the court and to the defendant conveys full knowledge in fact of what has been done to fix the liability of the indorsers; and neither court nor defendant misunderstands it, nor is ■either liable to be misled by it. To require greater particularity and more specific enumeration of facts, would be
The judgment must be affirmed.
Judgment affirmed.
