Fornaris-Roig v. Font

35 P.R. 559

Opinion

Me. Justice Hutchison

delivered the opinion of the court.

At the instance of plaintiff in a suit on a promissory note the court below rendered judgment on the pleading’s for the •amount specified in the complaint.

Plaintiff alleg-ed execution, delivery and non-payment of a note subscribed before á notary and set forth in full in the complaint.

The unverified answer admitted the execution and authenticity of the note. Section 119 of the Code of Civil Procedure; Chiques v. Polo, 15 P.R.R. 257; Bennett v. Boschetti, 31 P.R.R. 809. But defendant denied delivery and non-payment of the note and alleged the non-existence of any indebtedness whatever.

Issue having been joined upon these points it was incumbent upon plaintiff at least to prove possession of the note. It follows that the entry of a judgment upon the pleadings was improper.

Davanay v. Eggenhoff, 43 Cal. 395; Martin v. Porter, 84 Cal. 476, 479, 24 Pac. 109; Derby v. Jackman, 89 Cal. 1, 3, 26 Pac. 610.

The judgment appealed from must be reversed.