La Nasa v. Colton ( 1921 )

Dlnkelanlel. J

Plaintiff institutes this suit against defandante allaging tha ownership of a promissory nota for tha aun of | 339.40», with Interest at the rate of 7# par annua from 14th. April, 1919, until paid, oosts of protost amount to $ 3.00., Attorneys fees on amount '"sued for, ten percent, and for all oosts of Court.

_y The answer of defendants, aworn to hy them, substantially sets up the dafenoe that plaintiff was not the owner of the notes that Ulohael J. Rooney, one of the defendante, endorsed said note, but same was dona without consideration therefor) that no oonsidaratlon was given for the lssuanos of said obligation, and that same was given for an Illegal and unenforcable debt, and that no reoovery oan be had thereon. Henoe, they pray for Us-ada sabia misal of the suit.

In due oourse tha oase was oalled for trial in the lower Court, defendants absent and not represented.

Tha Kota sued on was offered In evidence and It was proved by the testimony of plaintiff

4- As plaintiff In this oase you are suelng the defendant Colton on a Note made by him and endorsed by 11. J. Rooney for $ 339.40. Does that Note belong to you?

A- Tea; I loaned Ur. Colton the money, he had no monay to get out of town) he ashed me to loan the monay on his Note and that Mihe Rooney would endorse, payable in sixty days, and It has never been paid.

Plaintiff then offered in evldenoe, the petition, citation served on both defendants, the Sheriffs return, the Note sued on, the notice of protest and return thereon, and the minute entry of default of date 36th. Uaroh, 1930.

On this evidence judgment fias rendered o y tne lower Court as prayed for.

Subsequently, a new trial was applied for, amonst other things, it was alleged that when tais cause was called for trial on the 36tn. of April, 1930, it was the seventh case on tne docket, and tnat Edward T. Colton, one* of the defendants was out of tne City in Lexington. Ky. The Attorne, wnc makes the affidavit was compelled to he in the Criminal ristrict Court at 10.30, that morning, notified Counsel on the other side, Hr. Marinoii, and advised him of that fact, tout Kr. Marinoni insited upon a trial and judgment, hence this appeal, new trial having teen denied.

It is a strange ooincidentA^hat almost the identical plea of the Attorney in this case made before tne lower Court was made in this Court^ when the case was called. Ke not toeing nresent and sending word through a friend of hie, another Attorney, that he was engaged in the Criminal District Court, and requested a continuance. But under the rule of this Court not having filed a brief, hence, was not entitle to a continuance and the case was tried. t

Since then Counsel had filed his brief wliioh has received careful and considerate attention at our fcands, and it is simply no more nor less than the averments contained in the ansvzer, and asking this Court that we remand the case in order that testimony can he taken to prove the avererr.ents of the answer.

If there is any such practice t8sd3aer\«*ast»sass!« lATt' are not aware of it, uCD. Mlwul a nor have^lseen sssiwd. to any autJprlty. bSsytohSese*. The law &f the case is plain. The mere statement is sufficient. In plaintiffs brief we find illustrations cited for the purpose required for decision 6£ this case without further controversy. " Credit given to the mater of a note is consideration sufficient to hind an accomedation endorser". Schaffter vs. Irwin. 139 L. 92.

Again, to the same effect in Weill vs. Trosclair, 42. A. 171. " The maker and endorser of a note are hound in solido for the full amount of the note". Newman vs. Pelerine. 138. L. 450. Also see Negotiable Law, Sec. 63.

For the reasons herein assigned, it is ordered, adjudged and decreed, that tne judgment of the lower Court he, and the same is now affirmed with coBts against the defendants in both Courts.

(Judgment Affirmed)