Norvell v. Hittle

Erazer, J. Hittle sued B. F. Norvell, J. W. Norvell, and Moffitt, the makers, and Yeo, the indorser, in the Court of Common Pleas, of Wayne county, upon a note payable at the Rushville branch of the bank of the state. The complaint is in the usual form, as upon a note indorsed in blank, and shows that the note was at maturity protested for 'non-payment. J. W. Norvell was not served with process. B. F. Norvell and Moffitt answered to the jurisdiction of the court, that ever since the date of the note all the makers thereof were citizens of and resided in Rush county, and never had resided in Wayne county; that Yeo indorsed the note to the plaintiff after its maturity and protest, and only for the purpose of having suit brought upon it in Wayne county; that Yeo is liable only as an ordinary indorser, and not immediately liable to judgment and execution. This answer was sworn to. Yeo made default, and a demurrer was sustained to the answer, and an assignment of error upon that ruling presents the only question in the record. Dilatory defenses are not favored, and consequently great certainty is required in pleading them. So much of the answer as we have stated in italics does not allege any facts, but merely conclusions of law, which the pleader has deduced from facts probably not in the record; for the facts alleged do not justify those conclusions. If Hittle demanded payment of the note within a reasonable time after the indorsement was made, and gave notice to Yeo of the non-payment, or if Yeo waived such demand and notice, then the latter would be immediately liable, and might he sued'jointly with the makers. 1 G-. & II. 451, sec. 16; 2 G. & H. 50, sec. 20; Edwards on Bills, 261. And the suit might in either case he brought in Wayne county, where Yeo resided. 2 G. .& H. 58, sec. 33. There is nothing in the answer to exclude the conclusion of such demand and notice, or of the waiver thereof by Yeo, and we are of opinion, therefore, that the demurrer was [348] correctly sustained. Rea v. Hayden, 3 Mass. 24; Lawrence v. Smith, 5 Mass. 362. L. Sexton and J. P. Siddall, for appellant. George Holland, J. F. Kibby, and John G. Whitridge, for appellee. The question argued by .counsel is, whether the makers shall he heard to show the non-liability of the indorser to oust the jurisdiction when he waives it, or rather confesses it by his default. "We do not determine that question, because, as has been seen, we do not deem the answer sufficient to present it. Judgment affirmed, with one per cent, damages and costs.