Page & Stivers v. Prentice & Weisinger

Court of Appeals of Kentucky

Page & Stivers v. Prentice & Weisinger

44 Ky. 7, 5 B. Mon. 7, 1844 Ky. LEXIS 58

DecidedSeptember 4, 1844

StatusPublished

This text of 44 Ky. 7 (Page & Stivers v. Prentice & Weisinger) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Page & Stivers v. Prentice & Weisinger, 44 Ky. 7, 5 B. Mon. 7, 1844 Ky. LEXIS 58 (Ky. Ct. App. 1844).

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Opinion

Judge Marshall

delivered the opinion of the Court.

The defect in the preparation of this suit for which the judgment was formerly reversed, (3 B. Mon. 461,) having. been supplied, a verdict and judgment were again rendered in favor of the plaintiffs; and the only question now presented by the record which was not decided when the case was formerly here, grows out of the fact, that there is no express evidence that Page, the payee of the bill, resided at Louisville, to' which place the notice of protest and non-payment, was directed to him by the Notary at Nashville, where the bill was presented to the acceptor for payment. The facts that [the bill was dated at Louisville, and that process in this áuit was served upon Page in Jefferson county, in which Louisville is situated, are relied on as being sufficient in the absence of all other evidence, to authorize the conclusion that the notice was properly directed; and thus to make out due diligence'in that respect, and to justify the opinion of the Court in overruling the motion for a non-suit, and deciding that the evidence was sufficient to authorize a recovery.

The ease of Dickens vs Beal, (10 Peters, 574,) is understood as establishing the position that if upon due enquiry the Notary is unable to ascertain the residence of the drawer or endorser, he may direct the notice to the place at which the bill is dated; and that this will be sufficient, though the party to be notified resides at [8]*8another place. From which it is to be implied that the date of the bill furnishes some evidence of the residence of the payee; and as the service of process in Jefferson county undoubtedly furnishes some evidence of the party’s residence in that county, and as moreover it must always be easy for the party to rebut the inference from these facts if it be not true. We think these facts should be deemed sufficient in the absence of all opposing evidence to authorize the conclusion that the notice was properly directed to Page at Louisville.

Guthrie for plaintiffs. Duncan for defendants.

Wherefore the judgment is affirmed.

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Judge Marshall

delivered the opinion of the Court.

The defect in the preparation of this suit for which the judgment was formerly reversed, (3 B. Mon. 461,) having. been supplied, a verdict and judgment were again rendered in favor of the plaintiffs; and the only question now presented by the record which was not decided when the case was formerly here, grows out of the fact, that there is no express evidence that Page, the payee of the bill, resided at Louisville, to' which place the notice of protest and non-payment, was directed to him by the Notary at Nashville, where the bill was presented to the acceptor for payment. The facts that [the bill was dated at Louisville, and that process in this áuit was served upon Page in Jefferson county, in which Louisville is situated, are relied on as being sufficient in the absence of all other evidence, to authorize the conclusion that the notice was properly directed; and thus to make out due diligence'in that respect, and to justify the opinion of the Court in overruling the motion for a non-suit, and deciding that the evidence was sufficient to authorize a recovery.

The ease of Dickens vs Beal, (10 Peters, 574,) is understood as establishing the position that if upon due enquiry the Notary is unable to ascertain the residence of the drawer or endorser, he may direct the notice to the place at which the bill is dated; and that this will be sufficient, though the party to be notified resides at [8]*8another place. From which it is to be implied that the date of the bill furnishes some evidence of the residence of the payee; and as the service of process in Jefferson county undoubtedly furnishes some evidence of the party’s residence in that county, and as moreover it must always be easy for the party to rebut the inference from these facts if it be not true. We think these facts should be deemed sufficient in the absence of all opposing evidence to authorize the conclusion that the notice was properly directed to Page at Louisville.

Guthrie for plaintiffs. Duncan for defendants.

Wherefore the judgment is affirmed.

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44 Ky. 7, 5 B. Mon. 7, 1844 Ky. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/page-stivers-v-prentice-weisinger-kyctapp-1844.

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