Lee v. Ainslie

By the Court.—Ingraham, F. J. —This is an appeal from, an order granting judgment for the frivolousness of a demurrer. It is objected that the judgment must first be entered before an appeal can be taken, but we have been in the practice of treating such appeals as properly taken from the order, and have held that we could review it as an order and not as a judgment. There have been various and conflicting decisions ón this point. I see no harm to arise from adhering to our former practice; and to the losing party the expense is less. Whether or not the complaint is good, depends upon the answer to the question whether it contains allegations of every thing that the plaintiff would have to prove on the trial to sustain his action. In such action he must prove his possession or title, the signatures of the maker and endorsers, the demand and notice of non-payment, and the amount due upon the note for principal and interest. These facts would entitle the plaintiff to recover, and they are all averred in the complaint in the present case. It is not necessary, under the present system of pleading, for the plaintiff to aver that the payee delivered the note to him. He is required to state the facts as they exist, and the old system of pleading, which allowed the truth to be shown under a fictitious statement, is no longer in force. The cases referred to all assume that the allegation in the complaint that the plaintiff is the lawful holder of the note, when denied, forms a material issue. The words used in this complaint are, that the note, for value received, lawfully came into the possession of these plaintiffs. This is equivalent to the other form of alleging title. The demurrer admitting that the note came lawfully to the plaintiffs’ possession for value received admits thereby title. We think the demurrer is frivolous, and that the complaint shows a good cause of action. The order should be affirmed.