Bilby v. Cochran

BROWN, J.

Suit was instituted in the district court by defendants in error against plaintiff in error, N. V. Bilby, upon a promissory note. The petition was styled “G. C. Cochran and C. W. Cochran, Partners, Doing Business under the Firm Name and Style of Cochran Grocery Compány, Plaintiffs, v. N. V. Bilby, Defendant.” In the body of the petition there appears to be no allegation as to the existence of a partnership between plaintiffs, further than the allegation that plaintiffs are the original payees of the note sued upon. The note is set out in full in the body of the petition, and is as follows:

“McAlester, OMa. April 25, 1913. $836.47. Oct. 15, 1913, after date, for value received, I, we, or either of us, promise to pay to the order of G. C. and C. W. Cochran partners under the firm name of Cochran Grocery Co. eight hundred thirty-six and 47-100 dollars payable at McAlester, Oklahoma, with interest at the rate of ten per cent, per annum from date until paid, with ten per cent, additional as attorney’s fees should this note be placed in • the hands of an attorney for collection, or judicial proceedings instituted to collect the same. Demand for payment, protest and' notice of dishonor are hereby waived by all parties and we agree to all extensions and partial payments.' . N. V. Bilby.”

On the 14th day of November, 1914, defendant filed a demurrer to the petition of plaintiffs, in substance, as follows: That the petition of plaintiffs does not- allege a partnership between the parties plaintiff; that the note purports to have been made payable to the order of G. C. and C. W. Cochran, partners under the firm name of Cochran Grocery Company; that the petition fails to allege a consideration for the note; that the suit seeks to collect 10 per cent, additional on the amount of principal and interest of the note as attorney’s fee, contrary to the terms of the note as shown on the face of the petition; that said petition is not properly signed by either said plaintiffs or their attorneys. The demurrer was overruled January 25, 1915, and exceptions allowed, and defendant given until February 1, 1915, to answer. February 2, 1915, defendant filed an unverified general denial of plaintiffs’ petition. On the same day plaintiffs filed motion to strike the answer from the files, on the ground that it was filed out of time without leave of the court, and because the same was not verified, as by law required to put in issue plaintiffs’ pleadings, which motion was sustained on the latter ground and judgment rendered for plaintiffs. On the following day defendant filed a motion for a new trial, in which he urged error of the court in striking his answer, as aforesaid, and rendering judgment against him. 'On the 5th day of February, 1915, plaintiffs themselves filed motion to reinstate defendant’s answer and set aside the judgment rendered, whieh was done, and to which defendant objected and excepted. On the same day plaintiffs moved for and were granted judgment on the pleadings on the ground that the unverified general denial of defendant admitted the execution of the note, and no other defense was made thereto, from which judgment the defendant brings the case here.

Defendants in error seek to have the appeal dismissed on the ground that the same is frivolous and prosecuted for delay. To this motion plaintiff in error filed answer, in which he resists the motion on practically the same grounds stated in his demurrer to the petition, but he does not allege any defense to plaintiffs’ action.

It occurs to us the appeal is frivolous and is prosecuted for delay only. It is, therefore, dismissed.

All the Justices concur.