Smith v. Humphrey , 15 Iowa 428 ( 1863 )

Baldwin, Ch. J.

The appeal in this cause is from the judgment of the District Court in affirming, upon a writ of error, the judgment of the.justice of the peace.

The defendant, on trial before the Justice, moved for a rule requiring the plaintiff to give security for costs. This motion was supported by affidavit showing that the plaintiff was a non-resident of the State. The action of the Justice, in overruling this motion, is first assigned as error. The question thus presented is, whether the provisions of chapter 136, of the Revision of 1860, applies exclusively to proceedings in the District Court. From the language used in the different sections of this chapter, such as “ the defendant before answering ” (evidently referring to pleading in the District Court), “ file in the clerk’s office a bond,” “must.be a resident of the county where suit is brought,” (the jurisdiction of a Justice being limited to his township, except in special cases,) “ to be approved by the clerk,” “no attorney or other officer of the Court shall be received as security m any proceedings in Court.” .And from the fact that there is no express language giving such power, we hold that it was not designed that in a Justice’s Court the plaintiff should be required to give security for costs.

It is insisted in tbe next place that tbe Court erred in rendering judgment upon tbe note under tbe state of tbe pleadings, as defendant denies ownership in tbe plaintiff, and alleges that tbe original payee is still tbe owner, &c.; that suit was brought by tbe indorsee upon a blank indorsement, and no allegations were made that such indorsement was genuine, or any evidence offered but tbe note itself, and that without such proof, under section 2967, plaintiff could not recover.

Under this section (and itwas while this was in force, or prior to its being amended, that this suit was brought), tbe indorsee of an instrument was required to prove tbe genuineness of tbe indorsement, yet tbe defendant in this case, in bis answer, admits that tbe original payee did indorse tbe note to plaintiff, but claimed that tbe same was made for a fraudulent purpose. Tbe genuineness of tbe signature is therefore admitted, and if admitted in tbe answer, nó proof on tbe trial of tbe fact was required. Tbe note itself was filed with tbe justice at tbe commencement of tbe action, and this was a sufficient statement of plaintiff’s cause of action. Tbe judgment is

Affirmed.