Stebbins v. Goldthwait

Erazer, J.

This suit originated before a justice of the peace. It was upon a promissory note made by the appellant, payable to one S. B. Campbell, and indorsed in blank by Campbell, and M. Stebbins, and George W. Stebbins. In this condition the note was filed as a complaint before the justice. When the cause came to the court of common pleas by appeal, a formal complaint was filed upon the note as if indorsed by Campbell to the plaintiffs, now appellees, and showing copies of the note and such an indorsement. The defendant then answered in two paragraphs verified by affidavit : Eirst, that Campbell by indorsement assigned the note to one Jeremiah B. Stebbins,who afterwards and while holding the note died, intestate; that there was no administration upon his estate, nor was said note in any manner afterwards made the property of M. Stebbins, his widow; nevertheless, she assigned and indorsed the note to one Geoi’ge Stebbins, who assigned it to the plaintiffs; that Jeremiah B. Stebbins was largely indebted at the time of his decease, and his debts remain unpaid; wherefore the defendant prayed that the suit abate and be dismissed. Second, alleging substantially the same facts as the first, and also, that the defendant holds large claims against the estate of Stebbins, deceased, which in a' suit by his administrator would be proper set-off, wherefore the defendant prayed that the *161 suit abate. A demurrer was sustained to each of these .answers, and it is claimed that these rulings were erroneous.

J. Brownlee, for appellant. A. Steele and JR. T. St. John, for appellees...

Upon the trial, the court gave leave to the plaintiffs to strike off" of the note the indorsed names, “M. Stebbins” and “George W. Stebbins,” and to write above the name of Campbell an assignment to themselves; to which the defendant excepted, and lie now questions the correctness of that ruling here.

The note thus indorsed was the only evidence..offered, .and it was admitted over the defendant’s exception;. After a finding for the plaintiffs,a motion for a new trial’was overruled and a judgment rendered on the finding.

It is not pretended, on behalf of the appellees, .that the-facts pleaded were not a sufficient defense, but it is argued that the general denial which was in by statute (the ease having originated before a justice of'the peace) authorized, the same proof. Such is not our opinion. The general denial not sworn to, would, under our code, have raised no-question as to the genuineness of the indorsement as shown, by the complaint, and would not, therefore, have put the-plaintiffs upon proof of it, or admitted the evidence of the ■ facts set up in the answer.

Reversed, with costs, and remanded, with, directions to * overrule demurrer.