Bettis v. Schreiber

Vanderburgh, J.

After the plaintiff had rested, and one witness had been examined on behalf of the defendant, plaintiff interposed a motion to dismiss the action, which was overruled by the court. The plaintiff bases his right to dismiss upon Gen. St. 1878, c. 66, § 262, subd. 1, and insists that the words “before trial,” in that section, mean before the submission of the ease to the court or jury. But this -would evidently do away with any distinction as respects the time for such dismissal by the plaintiff, between subdivisions 1 and 3 of the section.

The words “before trial” mean before the commencement of the trial. St. Anthony Falls W. P. Co. v. King Bridge Co., 23 Minn. 186 . It was too late, therefore, to dismiss the action as a matter of right under subdivision 1, and it is not claimed that the court erred in not dismissing it under subdivision 3.

2. In order to establish the liability of the defendant as indorser upon the notes sued -on, the plaintiff introduced in connection with them certain instruments of protest, purporting to be executed under the hand and seal of a notary residing at Oil City, in the state of Pennsylvania, where the notes were dated, which severally recited the facts, showing proper demand of payment and refusal, whereof, “I” (the notary) “duly notified the indorser.” The trial court ruled that the instruments of protest, including the certificate of notice, were properly admissible in evidence, and they were accordingly received. The court also held that the certificate of the notary showing that he duly notified the indorser was prima facie evidence that notice was in fact given him personally, and not in any other mode. Thereupon the defendant, being called as a witness, testified that at the time of the indorsement of the notes by him he lived at Allentown, Pennsylvania, several hundred miles from Oil City, where they were protested, and that at the time of the maturity of the first note he was actually residing at Moorhead, in this state; and he denied that he ever had any notice that the notes remained unpaid, until within a short time before this action was commenced. The jury found for the defendant.

*332 Under Gen. St. 1878, c. 26, § 8, instruments of protest of a bill or note, by a notary of this or any other state, are made prima facie •evidence of the facts therein certified. As instruments of evidence, such protests may properly be held to include the certificate of notice to indorsers usually accompanying them, though it is not expressly so stated in the section referred to. Ordinarily, in practice, the statute would be of very little practical benefit were any other construction adopted. If the fact of notice of demand and refusal must in all cases be proved by depositions or other evidence, the protest also might as well be proved in the same way. Union Bank v. Middlebrook, 33 Conn. 95; Rushworth v. Moore, 36 N. H. 188. A rule of evidence is thus created by the statute applicable to such instruments generally, when properly executed by a notary, whether of this or another state. The instrument of protest, including the certificate of notice, was therefore properly received in evidence; the sufficiency and effect thereof remaining for the court to construe. In the absence of any evidence showing the manner of service, we think the ruling of the court sufficiently favorable to the plaintiff, and that no greater effect should be given to the certificate, as evidence, than that the notary intended to certify that the indorser was actually or personally served with the proper notice; so that a prima facie case was made by plaintiff when he rested. We are disposed to consider the rule laid down by the trial court a safe and practical one, though liable, perhaps, to some criticism. Rushworth v. Moore, supra; Kase v. Getchell, 21 Pa. St. 503; Ticonic Bank v. Stackpole, 41 Me. 321 ; Pattee v. McCrillis, 53 Me. 410 . When, however, it was made to appear that the defendant was never actually notified, it devolved upon the plaintiff to prove the facts (if they exist) showing the exercise of such diligence as the law accepts as equivalent to evidence of actual notice, though such notice may never have been brought home to defendant in fact. 2 Daniel, Neg. Inst. (3d Ed.) §§ 1048-50, 1058a; Wilson v. Richards, 28 Minn. 337 ; Friend v. Wilkinson, 9 Grat. 31. If the service was made by mail at defendant’s place of residence, or if the notice was sent to Allentown, his former place of residence, and the holder was ignorant of his change of residence, *333 and was guilty of no negligence in not knowing it, it would have been sufficient; but plaintiff should have been prepared to show such facts, either by the proper notarial certificate, or by evidence aliunde. Bigelow, Bills & Notes, 339, and note.

As the case stands, the order denying a new trial should be affirmed.