Smith v. McEvoy

8 Utah 58

Opinion

MINER, J.:.

This action was brought by J. W. Smith to foreclose a mortgage given by Thomas McEvoy to Alma S. Kendall. Kendall assigned the mortgage, and indorsed the note to. the plaintiff before maturity. The complaint alleges that due and legal notice of the -dishonor and non-payment of the note was given both defendants. To this complaint, both defendants filed their separate demurrers, on the ground that the complaint does not state facts sufficient, to constitute a cause of action. The defendant Kendall also asked the court to make an order requiring a separate statement of the causes of action .to be made against each defendant. The several demurrers were overruled, and .the motion was denied. Time was given defendants to answer. No answer being filed, a judgment was entered for the amount of the note against both defendants.

The defendants’ counsel alleges that the court erred in overruling the demurrers and in denying the motion. The only complaint made is that the court overruled the demurrers and denied the motion. Kendall was a general indorser. Due and legal notice of the dishonor and nonpayment of the note was given both defendants. Kendall, having had due legal notice of the non-payment and dishonor of the note, must be held to have had sufficient notice to hold him to his promise to pay, as provided by Comp. Laws 1888, § 2864. Coddington v. Davis, 1 N. Y. 186; Allen v. Patterson, 7 N. Y. 476; Began v. O’Riley, 32 Cal. 11; Comp. Laws 1888, §§ 3225-3285; Garner v. Marshall, 9 Cal. 268. This action was brought against both defendants upon the same instrument, upon which the plaintiff had a primary right to recover a debt due him from the defendants which it was their corresponding primary duty to discharge. The plaintiff was not called upon to state his cause of action separately against both defendants, under § 3220, Comp. Laws 1888. Pom. Ren. § 452; Comp. Laws 1888, § 3185; Brereton v. Miller, 7 Utah, 426, 27 Pac. Rep. 81. The abstract in this case is Very imperfect. From it we are unable to discover what the appeal is taken from, but we are led to infer that it was taken from the final judgment. Were it otherwise the appeal should be dismissed, as no appeal lies from an order of the district court overruling a demurrer. Thomas v. Railroad Co., 1 Utah, 184; Zeile v. Moritz, Id. 283; Sup. Ct. Rule No. 6, 27 Pac. Rep. viii.; Lowell v. Parkinson, 2 Utah, 370. The judgment and decree of the third district court is affirmed, with costs.

ANDERSON, J., and Blaoeburn, J., concurred.