, 1892-05-11
FROM LEW IS COUNTY
An Action Relative to Two Prom.
issory Notes.



Facts Brought omt I'm the Case
The Appeal.
Notice All decisions Of the supreme
court will appear in TIE DAILY and WEEK
TX TRIBUNE.
A. Z. Davis, appellant vs.. w Erickson
and Chas. Erickson, respondents.
No. 380-This was an action brought by
appellant Davis upon two certain promis-
sorry notes of one thousand dollars each,
given by defendants #. Erickson and
Chas. Erickson. on the+8th day of N0Yem-
ber, 1880, with interest at the. rate of 10 per
cent per annun, each note providing for a
reasonable attorneys fee in case of suit to
collect the same The complaint, after
stating the usual allegations in such cases,
including refusal to pay, proceeds to- set
forth the fact chat after the execution and
delivery to him of the two notes msn-
toned, be borrowed one thousand and
twenty dollars of the First National Bank
of Centralla, and that he regularly as
signed and transferred to the said bank the
said two notes sued on as security for the
said sum of money borrowed. There is
also an allegation that on divers occasions
he requested and demanded the said First
National Bank of Gentralia. to institute
suits upon the said notes for collection
thereof, but that the bank had refused and
still refuses to do so. Plaintiff prayed for
Judgment against the defendants for the
amount of two said notes with interest,
and for an attorneys fee of two hundred
and fifty dollars, and asked the court to
decree that the First National Bank of
Centralia have subsisting lien upon the
ludg ment asked for, for the full and COM
plete satisfaction Of the demand owing from
the plaintiff to the said bank. The defendant
moved to strike4Out certain portions Of the
complaint; to make others more definite
and certain, and demurred to the COM
plant for the following reasons: (1), That
there was defect OF parties plaintiff or
defendant; ~, That the court has no
Jurisdiction OF the person Of The First
National bank of Centralia; {3), That the
plaintiff has no legal capacity to sue the
defendants; (4), That several causes of ao-
ton have been improperly united; (5)
That the complaint does not state facts
sufficient to constitute cause of action.
The demurrer was sustained by the court
on the ground that there was adefect of
parties defendant, and the court observed
that that being decisive of the case it
would not notice the other questions
raised. Judgment was entered for defend
ants for costs and plaintiff appealed. The
form OF the demurrer is objected to by the
appellant; but while the demurrer may
have been inartihcial in form, the COM
plaint is so manifestly faulty in almost
every particular that it could not possibly
support the judgment asked for. Outside
OF the redundant matters moved against
in the motion to strike, and which motion
the court undoubtedly would have sus-
tanned if it had reached that objection
the complaint affrmatiyely shows that the
bank, and not the plaintiff, was the owner
and holder of the notes sued on; and that
the said notes had been assigned to the
bank for a valuable consideration. This
was transfer sufficient to enable the bank
to maintain the action which the plaintiff
is now assuming to maintain. This doc
trine is universal.
See Swift VS.. Tyson, 16 Peters /; Tarbell
vs.. SturteYant, 26 Vermont 513 and cases
cited; Bange VS.. Flint, rs Wisconsin 544
and cases cited, also 1, Daniel onnegotiable
instruments 1884,
The plaintiff according to his own COM
plant was neither the owner of the notes
nor entitled to the possession of them. All
the interest he had in the notes was the
balance over the amount necessary to pay
his debt to the bank, and for that amount
the bank was his trustee. Notes assigned
for security would beof very little practical
benefit to the assignee if the assign0r could
proceed to collect them after the assigns
ment. The appellant insists that he was
providing. a remedy for the bank by asking
the court to decree a lien on the Judgment
in favor of the bank for the amount of the
bank S interest in the notes. But the in
terest of the bank could not possibly be ef
fected, or any right that it had in the notes
changed into lien on some other property
or IN any manner determined in this ac-
biOn, for the simple reason that it was in
no sense a party to the action, and there
had been no attempt to make IL such. The
allegation that the defendants would not
pay the amount due on these notes to the
plaintiff is a meaningless allegation, for
according to the complaint the bank was
the payee and the only party to whom the
notes could be paid and the only way by
InTI,
Of or the right to collect said notes, was to
pay the bank the amount, for the payment
OF which the notes were pledged. If the
bank had refused to collect said notes in
violation Of their contract to the damage
OF plalnJlff, in proper action against the
bank he might recover his damages, but it
is too plain for discussion that under the
statement of facts set up in the complaint,
plaintiff has no ground of action against
the defendants, and that the demurrer was
properly sustained
The appellant also assigns as error the
action of the court in refusing to allow him
to file a experimentation and relies
on section LA of the code, which provides
that the court may on motion allow sup
Elemental pleadings as showing facts which
accrued after the former pleadings were
filed. This so-called supplemental com
plant, however, we think was not a SUP
Elemental complaint at all, 1t is true that
it showed a fact which occurred after the
original complaint had been fled, viz
That the notes had been paid in full by the
defendants to the bank; that the bank had
applied SO much OF the proceeds thereof as
would fully pay and discharge the note due
the bank by plaintiff, and had paid over to
the plaintiff the balance thereof on the 9th
day of May, 1891, and it is alleged that no
attorneys fees has been paid on said notes,
and that there was a collusiOn between the
bank and the payers of the note, the de.