Turner v. First Nat. Bank , 40 Okla. 498 ( 1914 )

The defendant in error, plaintiff below, commenced this action against the plaintiff in error, defendant below, in the superior court of Muskogee county, its petition alleging, in substance, that it is a corporation duly organized, etc., with place of business in the city of Muskogee. That on the 21st day of December, A.D. 1908, George I. Uhl, being indebted to Samuel N. McPherson in the sum of two hundred and thirty dollars ($230), made, executed and delivered to the said Samuel N. McPherson his certain promissory note in writing, bearing date and day and year aforesaid, signed by the said George I. Uhl, and therein and thereby four months after date thereof promised to pay to the order of the said Samuel N. McPherson two hundred and thirty dollars ($230) for value received, with interest after maturity at the rate of eight (8) per cent. per annum until paid; that after the execution and delivery of said note and before the maturity the said Samuel N. McPherson for a valuable consideration endorsed and transferred said promissory note to the plaintiff, and the plaintiff is now the owner and holder thereof. That after the execution and delivery of said note and before the same was endorsed and transferred to the plaintiff, the defendant, C. W. Turner, by his certain endorsement, duly written and endorsed on said note, endorsed said note, and by virtue of said endorsement then and there became liable to pay to the payee of said note, the said Samuel N. McPherson, or to his order, the said sum of money in said note mentioned according to the tenor and effect thereof. That the defendant, C. W. Turner, at the time of making said endorsement, by his endorsement in writing duly entered on said note, waived presentment, notice of nonpayment and protest of said note. That no part of said note has been paid, and that although payment has been demanded said sum of two hundred and thirty dollars ($230) and interest from April 21, 1909, to date, is still unpaid, and is justly due and owing from the defendant to the plaintiff. A copy of said promissory note is hereto attached and is marked "Exhibit A," and the same is referred to and made a part of this petition. And plaintiff prayed for judgment; the petition being verified. The exhibit attached to said petition is as follows:

"Muskogee, Ind. Ter., Dec. 31, 1908.

"Four months after date, I promise to pay to the order of Samuel N. McPherson, the sum of two hundred and thirty dollars ($230.00) for value received, negotiable and payable without defalcation or discount and with interest from date at the rate of 8 per cent. per annum until paid.

"(Signed) GEORGE I. UHL.

"Endorsements:

"Protest waived.

"(Signed) C. W. TURNER,

"SAMUEL N. McPHERSON."

To this petition defendant filed a general demurrer, which was by the court overruled and exceptions saved, and thereafter the defendant answered and the case was tried and judgment rendered in favor of the plaintiff and against the defendant. The defendant filed a motion for new trial, which was overruled and exceptions duly saved, time being granted in which to make, serve and settle case-made, and the same is now before us on appeal.

The petition in error contains nine assignments. First, error in overruling the demurrer to the petition. Second, error in the admission of certain testimony. Third, error in overruling the demurrer to the evidence of the plaintiff. Fourth, error in directing a verdict. Fifth, error in instructing the jury to return a verdict in favor of the plaintiff, for the reason that the amount thereof is excessive. Seventh, error in entering said judgment, because the same is against the law and the evidence. Eighth, error in entering judgment against the defendant, because the amount is excessive. Ninth, "the court erred in other matters and respects in said case, which errors will be disclosed by an inspection of the record in said case."

The plaintiff in error fails to assign as error the action of the trial court in overruling the motion for a new trial, and it has been repeatedly held by this court that where the appellant fails to assign as error the overruling of the motion for a new trial in the petition in error, no question is properly presented to this court to review error alleged to have occurred during the progress of the trial in the court below. See Beall v. Mut. Life Ins. Co., 7 Okla. 285,54 P. 474; Martin v. Gassert, 17 Okla. 177, 87 P. 586; J. J.Douglas Co. v. Sparks, 7 Okla. 259, 54 P. 467; Whitacre v.Nichols, 17 Okla. 387, 87 P. 865; Kimbriel v. Montgomery,28 Okla. 743, 115 P. 1013; Meyer v. James, 29 Okla. 7,115 P. 1016; Cox v. Lavine, 29 Okla. 312, 116 P. 920; McDonald v.Wilson, 29 Okla. 309, 116 P. 920; Burroughs v. Funk,29 Okla. 677, 119 P. 976; George v. Moore, 32 Okla. 842, 124 P. 36. The ninth assignment is too general in its terms; it neither points out error nor directs the court's attention to any facts showing cause for reversal. See Willett v. Johnson,13 Okla. 563, 76 P. 174. An assignment of error is a pleading and must state facts showing a sufficient cause for reversing, and where an assignment of error is so general as not to point out the real error or errors complained of, this court will not consider them, nor will it examine the record with regard thereto.

The only question properly raised by the petition in error is that presented by the first assignment of error, Does the petition state a cause of action? This note was executed and delivered when the 1893 statute was in force. Section 3607, Wilson's Rev. Ann. St. 1903, provides:

"One who writes his name upon a negotiable instrument otherwise than the maker or acceptor and delivers it with his name thereon to another person is called an endorser and his act is called endorsement."

Section 3622, Wilson's Rev. Ann. St. 1903, provides:

"The want of consideration for the undertaking of the maker, acceptor or endorser of a negotiable instrument does not exonerate him from liability thereon to an endorsee in good faith for a consideration."

The petition states a cause of action, and the demurrer was properly overruled.

The judgment of the trial court is therefore affirmed.

All the Justices concur.