Peevey v. Tapley

TYSON, C. J. — The complaint as originally framed counted for a recovery upon two promissory notes, containing waiver1 of exemptions as to personal property, whiclx had been duly transferred to plaintiff by indorsement. After defendant’s pleas of non est factum and want of consideration were filed, the complaint was amended by averring that the notes were negotiable and payable at a certain bank designated in them. To the complaint as thus amended a sworn plea was interposed denying plaintiff’s ownership of the legal title to said notes. To this plea the plaintiff replied: (1) That he is not required to show that he holds the legal title to the notes; an (2) that the complaint shows that the suit is on a promissory note, and not a commercial paper, and therefore plaintiff is not required to show that he holds the legal title to the notes. We have stated the chronological order in which the pleadings appear in the record to have been filed, in order that the ruling of the court upon the several demurrers may be intelligently disposed of. In fact, this mere statement, coupled with a cursory reading of the pleadings to which demurrers were interposed and1 passed upon by the court, will suffice to1 show that the court’s rulings were free from error. The trial was had upon the amended complaint and the plea of non est factum and the one denying plaintiff’s ownership of the notes sued on. Under these issues the burden was upon the plaintiff to establish the execution of the notes and that he had the legal title to them by indorsement at the commencement of the action ; and, until lie produced competent proof of both of these facts, the notes could not be legally admitted in evidence. The notes on their face were payable to1 the order of W. S. Smith & Co., negotiable ancl payable at Sturdivant’s Bank, Dadeville, Ala. The written in-dorsement upon the back of each of them were as follows : “We hereby assign within note to E. L. Clark, [323] value received. 10-1, 1899. W. S. Smith & Co.” “E. L. Clark, without recourse.” “Pay to the order of Hinds Peevey. E. L. Clark, as Administrator of the Estate of J. A. Smith, deceased.” No proper proof of-the execution of these indorsements by .the several parties was offered. It is true that plaintiff offered to testify baldly that he was the owner of the notes. But, clearly, this was incompetent, and was properly excluded. Proof of the genuineness of the several signatures of the indorsers through whom he claimed to have derived title, which was necessary, could not he made in this way. After the court had sustained objections to all questions propounded by plaintiff for the purpose of showing his ownership of the notes, leaving no testimony before the court tending in any degree to establish the fact of ownership by plaintiff of them, either legal or equitable, he again amended his complaint so as to declare upon the notes as noncommercial paper. It also appears that when this was. done the defendants filed additional pleas denying his ownership. At this stage, without again offering proof of plaintiff’s beneficial ownership of them, the notes were again offered in evidence; but, on objection, their admission was disallowed. This ruling was clearly correct. Had proof of ownership been offered, we do not wish to be understood as holding that the notes should have been admitted in evidence, against an objection based upon the ground of variance between the allegata and probata. Affirmed. Haralson, Simpson, and Denson, JJ., concur.