Rising v. Teabout

35 N.W. 499, 73 Iowa 419

Opinion

Seevers, J.

i. appeal: prejudice?10111 I. Several of the errors assigned and argued by counsel relate to rulings having reference alone to the account. As the court found for the defendants on that branch of the case, the rulings, however erroneous they may be conceded to be, cannot be regarded as prejudicial.

2. PARTIES to action: person in possession of note. II. The note is payable to J. H. Isilin & Co., and is not It was indorsed as follows: negotiable,

“Pay the within to G. M. Rising, without vppími tsp

“John H. Isilin & Co.

“ By C. H. Bullís.”

The allegations of the petition are simply denied by the answer, which is not verified. When the note was offered in evidence, the defendants objected to its introduction, on the ground that it was not shown that the note was the property of the plaintiff, and no authority is shown for the assignment thereof, which objection was overruled. This ruling is assigned as error. Mr. Bullis, against the objection of the defendant, testifies, in relation to his authority to indorse the note, that “ Harry Isilin left the note and account with me, and left the whole matter in my charge, to do with it just as I deemed best.” • The admission of this evidence is assigned as error. Conceding this last ruling to have been erroneous, we do not think it was prejudicial, for the reason that the plaintiff had possession of the note, and therefore was authorized to bring suit thereon. in his own name. This was ruled in Younker v. Martin, 18 Iowa, 143, and Pearson v. Cummings, 28 Id., 345. It is true that in these cases the notes were payable to the order of the payee therein named; but this difference is immaterial, for the reason that it was held that the plaintiff could maintain the action because he Avas the holder. We need not repeat the reasoning of the cases cited.

3. judgment: putatiou:°oorreotion on appeal. III. The amount due upon the note was assessed by the clerk under the direction of the court, and for such amount the judgment was rendered. The appellants insist that the judgment was rendered for about . , , three dollars more than was due. It this is so, (which is doubtful,) the mistake was made by the clerk, and the court was not asked to correct it, and therefore it cannot be corrected in this court. (Code, § 3167.) Or if it can be said to have been a mistake or error of the court, it cannot be corrected by this court, for the reason no motion Avas made to correct it in the court below. (Code, § 3168.)

1Y. Evidence was introduced by the defendants tending to show they did not sign the note. But such evidence is not so convincing as to justify us in setting aside the finding of the court.

Affirmed.