Brenner & Co. v. Gundershiemer

14 Iowa 82

• Court: Supreme Court of Iowa
• Decided: October 17, 1862
• Status: Published

Opinion

Wright, J.

This action was commenced in January, 1862. After defendant had answered under oath, plaintiff filed an u amended petition.” To this, defendant demurred —demurrer overruled — and he standing upon his demurrer,- judgment was entered as by default for plaintiff. Defendant now insists. that he was not in default, for that his answer to the original petition was still on file. After the filing of the amended petition, however, the original was substantially out of the case, and the answer fell with it. It was to the new pleading, that which took the place of and was substituted for the original, that defendant was to respond; and if he failed to do so, his response to the original would not save his default. And, being in default, it was competent for the court to dispose of the case, with? out waiting until it was reached in its regular order, as assigned upon the docket.

Plaintiffs sue upon a note made in Baltimore, August 26, 1860, signed by S. Yauliex, and made payable to his own order. One count of the amended petition charges that on the day of the date of said note (which was due in eight months) the defendant, at the instance of Yauliex, and for his accommodation, indorsed his name upon the back thereof; that Y. negotiated it, and that plaintiffs, in the regular course of trade, became the purchasers and owners of said note, for a valuable consideration; that defendant, by his indorsement, promised to pay said note to the holder at maturity, if it was not paid by the maker; that it was regularly protested, and notice thereof given to defendant, and that before, at its maturity, and now, it is the property of plaintiff. The second count, after setting out the execution of the note as above by Yauliex, avers that at its date defendant became jointly and severally liable for the payment thereof with said Y. by writing his name on the back thereof, — that in due course of trade, and for a good and valuable consideration, plaintiffs became the purchasers and owners, and still own, tbe same. The demurrer raises the question whether the petition in either court shows that the legal right of action on said note is in plaintiffs. And the point is that the note is made payable to the order of Yauliex, and that he has never indorsed, nor ordered its payment to any person else. The action, however, is not upon the noté, but upon the undertaking to pay the debt of the maker, and this liability the defendant incurred to whoever might obtain the paper, or note containing his indorsement or undertaking, in due course of trade. The consideration for his undertaking is implied by the writing, or, if not, the liability arose contemporaneously with the original-debt, and no other consideration than that moving to the party accommodated was necessary.

Affirmed.