Sackett v. Montgomery

77 N.W. 1083, 57 Neb. 424, 1899 Neb. LEXIS 36

• Court: Nebraska Supreme Court
• Decided: January 19, 1899
• Docket: No. 8634
• Status: Published

Opinion

Nokval, J.

Milton Montgomery sued F. M. Sackett, and obtained judgment against Mm on a promissory note executed by tbe defendant and one John Dickenson, and payable to Montgomery & Jaycox, or order. Two defenses were presented, namely, that plaintiff was not the owner of the note, and that the payees had already obtained judgment against both makers for the full amount due thereon. Since the docketing of the cause in this court the death of the plaintiff below was suggested, and by agreement of parties an order was duly entered reviving the action in the name of his executors

As to the ownership of the note the evidence, without contradiction, shows that at the date of the institution of suit said Milton Montgomery was the owner of the paper, and on his behalf it was produced and introduced in evidence on the trial. The note was payable to the order of the payees, but did not contain their indorsement. This fact, however, did not prevent an equitable assignment of the paper to the decedent. A note payable to a party or order may be transferred by -the payee, without a commercial indorsement, by either an oral or a separate, distinct, written assignment thereof, followed by delivery, which would render the transferee liable-to any defenses against the original payee. (Doll v. Hollenbeck, 19 Neb. 639; Colby v. Parker, 34 Neb. 510; Gaylord v. Nebraska, Savings & Exchange Bank, 54 Neb. 104; Marskey v. Turner, 81 Mich. 62; Benson v. Abbott, 22 S. E. Rep. [Ga.] 127; Thomson-Houston Electric Co. v. Capitol Electric Co., 56 Fed. Rep. 849.)

As to the plea of estoppel by reason-of a former judgment, the record discloses the following facts: On June 15, 1894, which was prior to the bringing of this action, Montgomery & Jaycox caused to be docketed a suit on the note in question against both makers before H. 0. Vail, as a justice of the peace of Boone county. Summons was issued returnable on June 20. The day preceding the time fixed for the return of the writ John Dickenson, one of the makers of the note, appeared before the justice, waived process, an<l confessed that he was indebted to the plaintiffs in the sum of $84.02 upon said note. The justice inadvertently rendered judgment against both Dickenson and Sackett for said sum. Nearly a year afterward, at the request of the latter, and for the purpose of correcting a clerical error merely, the docket entry ivas changed to show a judgment against Dickenson only. There is considerable discussion in the brief of the power and authority to amend or change the judgment entry, but in our view it is wholly unnecessary to consider or pass upon the question. It was shown that Justice Vail never acquired jurisdiction over the person of Sackett; hence the judgment as against him ivas a nullity, and constituted no bar to the present action. (Colby v. Parker, 34 Neb. 510.) No reversible error appearing upon the face of the record the judgment is

Affirmed.