King v. Gottschalk

21 Iowa 512

• Court: Supreme Court of Iowa
• Decided: December 20, 1866
• Status: Published

Opinion

Dillon, J.

The court was right.

ac8on.m Reasons : Let it be granted that under our statute the wife’s choses in action do not, by mere operation of law, either pass to her husband or authorize him, against her consent, to sue upon them either in his own name- or in their joint names, still, she can give and delvoer them to him, and this would authorize him to sue. in his own name. Logan v. Hall, 19 Iowa, 491; Jones v. Jones, Id., 236; Peck v. Hendershott, 14 Id., 40. See and compare McDowell v. Bartlett, Id., 157; Oliver v. Depew, Id., 490.

2. promissory 8i0n-Being in possession of the note, suing upon and producing it upon the trial, this was prima facie evidence of the plaintiff’s ownership of the note, and sufficient evidence, it nothing further was shown, to justify a recovery upon it. Pilmer v. Bank, 19 Iowa, 112; Younker v. Martin, 18 Id., 143.

This presumption of ownership was not' overcome by the testimony. This simply showed who the heirs were. It did not rebut the presumption of ownership and right to sue arising from the possession of the note. by two of the heirs and the husbands of the other two.

3. practice : justice’s court. But appellant objects, that, admitting this to be true, still they could not sue as heirs of Samuel King. But ^ey did not sue as heirs; and even if they ^ j.pe statement in the notice in this respect may wrell be regarded as descriptio personae, or rejected as surplusage, or disregarded under the statute (Kev., § 3932) as immaterial.

It would scarcely accord with the spirit of the statute or with the broad charity which is extended toward the pleadings and proceedings of justices’ courts, to draw upon them the fine sight, or subject them to the critical tests proposed by the appellant’s counsel.

Affirmed.