Dabney v. Reed

12 Iowa 315

• Court: Supreme Court of Iowa
• Decided: October 21, 1861
• Status: Published

Opinion

Wright, J.

The form adopted by the pleader is that found in the Code of 1851. The question is, whether it is good since the repeal of that instrument and under our present system of practice.

There is nothing in the “ Code of civil practice ” which requires a party claiming upon a promissory note to state by direct allegation his title as assignee or holder. The petition is in all cases to contain “ a statement in ordinary and concise language, without repetition, of the facts constituting the plaintiff’s cause of action.” [Rev. 1860, § 2875.] And where the note is payable to bearer an averment that it is the property of, and the amount claimed is due, the plaintiff is equivalent to a direct allegation of title and there need be no statement of whether it passed by delivery or assignment. A petition thus worded implies, in the language of a New York case, that plaintiff owns the note in some legal manner of deriving title. Prindle v. Caruthers, 15 N. Y. 425. And this is sufficient. To state more would be repetition on the part of the pleader and unnecessary. Swan’s PI. & Pr. 184-5-9 and notes.

Reversed.