First National Bank v. Elliott

Supreme Court of Iowa

First National Bank v. Elliott

6 N.W. 687, 54 Iowa 419

DecidedOctober 5, 1880

StatusPublished

This text of 6 N.W. 687 (First National Bank v. Elliott) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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First National Bank v. Elliott, 6 N.W. 687, 54 Iowa 419 (iowa 1880).

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Opinions

Seevers, J.

i. eromisusury: .verdiet against evidence. The court instructed the jury as follows: “ If you find from the evidence that D. D. Gregory indorsed the note given to him by the defendants to the plaintiff, and the latter, after such indorsement, x * * brought suit upon said note in the Circuit Court, * * and that the defendant Elliott was notified of the pendency of said suit, and appeared in person and * * filed an answer setting up the plea of usury; then if you further find that after such answer was-filed, and said plea of usury was set up, that the plaintiff, in this action and in that action, and the defendant entered into a written agreement by which said suit was dismissed and settled, and * * Elliott was to pay the costs, and that after such written agreement and settlement the note in suit and now before you for consideration was renewed by the said * * Elliott .to the plaintiff in this action for a debt owing from D. D. Gregory to the plaintiff in this case, then in such case the plaintiff is entitled to recover, and you will so find.”

The plaintiff did not except to this instruction, but the defendants did. The latter, however, have not appealed-.- Under these circumstances we have no occasion to pass, upon the correctness of the instruction. It must be regarded as the law of the case.

It will be observed it was made a material question whether the note sued on had been given for a debt due the plaintiff by Gregory. The jury found specially the note' was not given for a debt due the plaintiff by Gregory.

This finding is in direct conflict with the evidence. The only witnesses introduced on the trial were the defendant Elliott, Emmons the clerk of the court, Sullivan, and Davis, cashier of the plaintiff. The two latter only gave evidence tending to show whether Gregory was indebted to the plain[421]*421tiff, and whether the note had been transferred in liquidation or payment of such indebtedness. The only conclusion that can possibly be drawn from such evidence is that the note was transferred' to the jilaintiff for a debt owing it from Gregory. There is not a particle of evidence to sustain the special finding.

■■ •Under the evidence the jury must and could only have found the other things mentioned in the instruction to be true. It, therefore, follows the verdict is clearly against the evidence. It should have been set aside and a new trial granted.

Reversed.

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Seevers, J.

i. eromisusury: .verdiet against evidence. The court instructed the jury as follows: “ If you find from the evidence that D. D. Gregory indorsed the note given to him by the defendants to the plaintiff, and the latter, after such indorsement, x * * brought suit upon said note in the Circuit Court, * * and that the defendant Elliott was notified of the pendency of said suit, and appeared in person and * * filed an answer setting up the plea of usury; then if you further find that after such answer was-filed, and said plea of usury was set up, that the plaintiff, in this action and in that action, and the defendant entered into a written agreement by which said suit was dismissed and settled, and * * Elliott was to pay the costs, and that after such written agreement and settlement the note in suit and now before you for consideration was renewed by the said * * Elliott .to the plaintiff in this action for a debt owing from D. D. Gregory to the plaintiff in this case, then in such case the plaintiff is entitled to recover, and you will so find.”

The plaintiff did not except to this instruction, but the defendants did. The latter, however, have not appealed-.- Under these circumstances we have no occasion to pass, upon the correctness of the instruction. It must be regarded as the law of the case.

It will be observed it was made a material question whether the note sued on had been given for a debt due the plaintiff by Gregory. The jury found specially the note' was not given for a debt due the plaintiff by Gregory.

This finding is in direct conflict with the evidence. The only witnesses introduced on the trial were the defendant Elliott, Emmons the clerk of the court, Sullivan, and Davis, cashier of the plaintiff. The two latter only gave evidence tending to show whether Gregory was indebted to the plain[421]*421tiff, and whether the note had been transferred in liquidation or payment of such indebtedness. The only conclusion that can possibly be drawn from such evidence is that the note was transferred' to the jilaintiff for a debt owing it from Gregory. There is not a particle of evidence to sustain the special finding.

■■ •Under the evidence the jury must and could only have found the other things mentioned in the instruction to be true. It, therefore, follows the verdict is clearly against the evidence. It should have been set aside and a new trial granted.

Reversed.

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6 N.W. 687, 54 Iowa 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-v-elliott-iowa-1880.