Phillips v. Oppenheim

HUNT, J. This is an appeal from the district court of Oklahoma county. The parties will be referred to as they appeared in the court below, inverse to their order here. Plaintiff Oppenheim commenced this action by filing his petition for judgment against the defendant Phillips on six promissory notes and foreclosure of mortgage on real estate given to Secure the same. The petition sets out separate causes of action on each of the six notes, alleging they were made, executed, and delivered to- plaintiff by defendant and that they ar'e past due and unpaid, and copies of each of said notes, showing plaintiff as payee and defendant as maker, are attached to the petition. Defendant filed a general demurrer to the petition, which was by the court overruled, and defendant elected to stand on the demurrer and refused to plead further; whereupon judgment was rendered for th'e plaintiff as prayed for. Prom this judgment, defendant prosecutes this appeal. Th'e sole and only assignment of error is: “Error of the court in overruling the demurrer of the plaintiff in error to the petition of the defendant in error” —defendant’s only contention being that, in' the absence of averment of ownership and possession, the petition is fatally defective unless th'e original note is attached to the petition. After the filing of defendant’s b”ief herein plaintiff filed motion to dismiss on the ground that it affirmatively appears on th’e face of the brief filed by plaintiff in error that this appeal is frivolous and for the purpose of delay only, citing Bilbo v. Sullivan, 114 Okla. 239. 246 Pac. 451. The writer is th’e author of that opinion, and felt then as now that where it clearly appears that an appeal is taken for the purpose of delay only, this court should not hesitate to- dis *182 miss tlie same and thus, discourage as far as possible the filing of frivolous appeals. Upon authority of that case we would probably be .justified in dismissing the appeal in the instant case, though the two cases are not exactly in point, For that reason and inasmuch as plaintiff in error herein has filed her brief, we prefer to dispose of this case on the merits, and have therefore denied the motion to dismiss and will consider this case on plaintiff in error’s brief and authorities cited by defendant in error in his motion t» dismiss.. The cases cited by plaintiff in error, to wit, Jefferson County Savings Bank v. Interstate Savings Bank (Ala. App.) 59 South. 384; Digan v. Mandel, 167 Ind. 586, 79 N. E. 899, 119 Am. St. Rep. 515; Milbank-Scampton Milling Co. v. Packwood, 154 Mo. App. 204, 133 S. W. 667; Simon v. Mintz, 101 N. Y. S. 86, 51 Misc. Rep. 670; Edelman v. Rams 109 N. Y. S. 816, 58 Misc. Rep. 561, are not in point here, because in each of them the action was by a party other than the original payee; it being stated in Digan v. Mandel, 167 Ind. 586, 79 N. E. 899, 119 Am. St. Rep. 515, as follows: “If the plaintiff in an action' on a note is - not the pay'ee therein, named, he must allege, facts showing, his title or right to maintain, the action.” -Also in Milbank-Scampton Milling Co. v. Packwood, supra, it was said: “A petition on a note payable to order must state that it was endorsed by the páyete and delivered to the plaintiff.” And in Simon v. Mintz, supra, and Edelman v. Rams, supra, quoting from plaintiff in error’s brief, we find; “Under Negotiable Instruments Law, sec. 320, Laws 1897, p. 755, e. 612, providing that, where a note is drawn to the maker’s own order, it is not complete until indorsed by him, a complaint on such a note failing to allege the maker’s indorsement was fatally defective.” In the instant case the plaintiff was payee in.each of the notes sued on and' the mortgagee in the mortgage which was attached to the petition and sought to be foreclosed. It is therefore clearly apparent that the cases above referred to, which are all the cases cited by plaintiff in error, do not support plaintiff in error’s contention herein. In Western & Southern Fire Ins. Co. v. Murphey, 56 Okla. 702, 156 Pac. 885, this court held: “It is first urged that the demurrer should have been sustained to the petition, because, the same does not allege that the notes were delivered to the plaintiff; and under the same assignment of error it is argued that thé petition fails to allege that the plaintiff is the' owner and holder of the notes: The' plaintiff' is payee in those notes'. The petition recites the execution of the' notes, that the amount thereof, is,.du'e to: the plaintiff,- and a default .in the payment thereof. Eromthese, facts ownership is presumed -.in the plaintiff, and an allegation that they were delivered or that he is still the owner and holder-is not necessary; Independent Of-this, the. answer admits that the: notes: were executed and delivered .to the plaintiff."- •' •. Likewise in the instant cáse; for' purposes of the demurrter, it is admitted that the allegations of the petition that the notes' were' executed ánd delivered to' plaintiff by the defendant; that the same Were past düe and unpaid, and that the copies of same attached to the petition, which copies, bear no indorsement, were true and correct copies of 'the. original, are all true. In the early case, of Berry v. Barton, 12 Okla. 221, 71 Pac. 1074, it was held:' “When, a party.-'executes a.note-payable to-, a person named- therein or to his order, and then fails to. pay the same at maturity, and the payee files his petition reciting the execution of the note by the maker to the plaintiff, for a valuable consideration, and the fact that defendant has defaulted', ownership is -presumed in the plaintiff, from the facts pleaded; and it is not absolutely necessary for him to formally allege that h'e is still the owner and holder -.of such note; and an answer which denies that.such plaintiff and payee is the owner and holder of.such note sued on, and alleges that he is hot the real party in interest, states ho., defense, and the plaintiff is entitled to judgment on the pleadings.” Other authorities, might be cited', but w’e deem it unnecessary, as these cases are clearly in point and decisive of the issues here presented. Binding no error, the judgment of the trial court must be affirmed, and it is so ordered. MASON, V. O. X, and HARRISON, PHELPS, LESTER,-CLARK,- RILEY, and KEENER, JJ., concur. BRANSON, C. J.; .absent and not participating. • Note. — See 8 C. X ,p. 886, §1159; p. 891, §1165. . ..