Miller v. Henry , 54 Ala. 120 ( 1875 )

MANNING, J.

The bond admitted in evidence against the objection of appellant corresponded with the description of it in the complaint, and was made payable as alleged, to John M. Patton, by whom (as the complainant proceeds to say,) “it was transferred and indorsed, to one James Critcher, by whom it was transferred to one James H. Moore, by whom it was transferred to the plaintiff, whose -property it now is.”

The ground of objection was, that the bond was indorsed by Patton in blank, and that Critcher’s name and those of the other transferrees did not appear on it. It is not alleged that any person but Patton indorsed it; and it is unnecessarily added that he transferred and indorsed it to Critcher, and that he transferred (not indorsed) it to Moore, and that he transferred it to plaintiff, whose property it is.

The indorsement by the payee in blank, authorized the filling up of the blank with the name of Mr. Critcher, the person to whom it was delivered, or of any other subsequent owner and holder; which filling ud might have been done, or considered as done at the time of the trial.—Riggs v. Andrews, 8 Ala. 628; Sawyer’s Adm’r v. Patterson, 11 id. 523.

There was no error in refusing to exclude the bond from being read in evidence; aud tbe mere transfer of it by Critcher or any subsequent owner, conveyed to tbe transferree a property in it, wbieb would not only enable but require tbe suit upon it to be brought, while be was tbe owner of it, in his name; according to the statute which declares that the action on such an instrument “must be prosecuted in tbe name of the party really interested, whether he have the legal title or not.”—Rev. Code, § 2523.

The remaining assignment of error is founded in mistake. Judgment was not rendered for more, by the amount of the interest, than was demanded by tbe complaint. It claims tbe amount mentioned in tbe bond, “ with tbe interest due thereon,” as set forth at tbe end of the complaint. Besides, there was no exception in regard to this, and it is not an error for which this court would reverse.

My opinion is that the judgment of the circuit court ought to be affirmed. And by section 665 of tbe Bevised Code, it is enacted that if two of tbe Pudges of this court be disqualified from sitting in any cause, tbe other judge must hear it, “ and if of the opinion that the judgment should be affirmed, bis judgment is of tbe same force and effect as if it were tbe judgment of a majority of tbe court.” My colleagues being both disqualified, having been of counsel for appellant, do not sit in this cause.

The judgment of the circuit court is affirmed.