Marks v. First Nat. Bank

Mr. Justice McCamant delivered the opinion of the court. 1. There are but three assignments of error. The one most insisted on is the entry of judgment for the defendant, plaintiff insisting that there is no evidence to support the verdict. Plaintiff made no motion for a directed verdict, nor did he otherwise raise in the lower court the question on which he now relies. It has been repeatedly held that the jurisdiction of this court is appellate and its province is to correct the errors of the Circuit Court. If the Circuit Court has committed no error this court cannot reverse its judgment. In the absence of some ruling in the Circuit Court on the question relied on there is nothing on which error can be predicated: Shmit v. Day, 27 Or. 110, 116 (39 Pac. 870); United States Mortgage Co. v. Marquam, 41 Or. 391, 405 (69 Pac. 41); Stoddard Lumber Co. v. Oregon-Washington Co., ante, p. 399 (165 Pac. 363). [603] 2. The only exceptions to this rule are jurisdictional questions and insufficiency of the allegations of the complaint: Shmit v. Day, 27 Or. 110, 116, 117 (39 Pac. 870). It has been expressly held that this court will not consider the sufficiency of the evidence to justify the verdict in the absence of some action in the Circuit Court raising and reserving the question: Shmit v. Day, 27 Or. 110, 116 (39 Pac. 870); Nunn v. Bird, 36 Or. 515, 520 (59 Pac. 808). A different rule would be unjust to the adverse party and unfair to the trial court. It often happens that the evidence is insufficient in some respect which can be readily supplied. In such case it is within the discretion of the trial court to open up the case and receive the missing evidence. A litigant should not be denied the benefit of such procedure by a rule which permits an appellant to contend in this court for the first time that the evidence of his adversary is insufficient to support a verdict. It is contended that the above rule has been modified by the amendment to Article VII of the Constitution, adopted in 1910 (Laws 1911, p. 7). Section 3 of the amended article authorizes this court to modify a judgment in certain cases, but it does not abrogate the salutary rule of appellate procedure hereinbefore set out. 3. Error is also assigned on the exclusion by the lower court of a check drawn by E. C. Marks in favor of plaintiff. The check was offered to prove the assignment to plaintiff of the cause of action alleged in the second count of the complaint. A check is not an assignment of the deposit to the payee: Section 6022, L. O. L.; United States National Bank v. First Trust etc. Bank, 60 Or. 266, 272 (119 Pac. 343). The evidence offered was therefore immaterial and was properly excluded. [604] 4. Plaintiff testified on cross-examination that lie made several demands on Sheridan for his money. On redirect he was asked: “Were yon making demand upon Mr. Sheridan, or were yon dealing with Mr. Sheridan as an individual or as president of the hank?” On objection by the defendant the court excluded the testimony sought to he elicited. We think that the ruling was right. Where, as in this case, a bank disputes its liability to a depositor, no demand is necessary to support the depositor’s action: First National Bank v. Peck, 180 Ind. 649, 659 (103 N. E. 643); Pratt v. Union National Bank, 79 N. J. L. 117, 120 (75 Atl. 313); Holden v. Farmers’ etc. National Bank, 77 N. H. 535, 538 (93 Atl. 1040, L. R. A. 1915F, 309); Donijanovic v. Hartman, 169 Mo. App. 204, 211 (152 S. W. 424). It appeared that the demands made on Mr. Sheridan were by letter and plaintiff testified that the letters were addressed simply to T. R. Sheridan. What was in plaintiff’s mind as to the capacity in which he addressed Mr. Sheridan was clearly not. evidence. Furthermore, it appeared that plaintiff demanded his alleged deposit from S. A. Sanford, cashier of the defendant. This was sufficient if a demand had been necessary. We find no error and the judgment is affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice Harris concur.