United States Nat. Bank of New York v. First Nat. Bank of Little Rock

Eighth Circuit

United States Nat. Bank of New York v. First Nat. Bank of Little Rock

66 F. 518, 13 C.C.A. 472, 1895 U.S. App. LEXIS 2660

CourtCourt of Appeals for the Eighth Circuit

DecidedJanuary 28, 1895

DocketNo. 507

StatusPublished

This text of 66 F. 518 (United States Nat. Bank of New York v. First Nat. Bank of Little Rock) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States Nat. Bank of New York v. First Nat. Bank of Little Rock, 66 F. 518, 13 C.C.A. 472, 1895 U.S. App. LEXIS 2660 (8th Cir. 1895).

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Opinion

PER CURIAM.

A, motion for a rehearing has been filed in this case. In support of the motion it is urged that the defendants in error asked an instruction in the nature of a demurrer to the testimony, which raised the question of the adequacy of the proof offered to fix the liability of tin; defendant bank as an indorser, and that this court in its decision overlooked the fact that such an instruction had been asked, and therefore erred in holding that the defendant bank waived or abandoned the defense of a want of proper demand and notice. It is only necessary to say that counsel are themselves mistaken in supposing that the record lodged in this court shows that such an instruction was asked. The record shows that at the conclusion of all of the evidence the plaintiff in error asked 10 instructions, all of which were refused, and that “the court, of its own motion,” gave the instruction which is quoted in full in the opinion. 64 Fed. 985. It nowhere appears in the record that the defendant bank asked any instructions, or that it attempted, by instructions or otherwise, to avail itself of the defense that a proper demand was not made upon the makers of the several notes in suit to fix its liability as an indorser. That is a defense we think, that was neither considered nor determined by the iria-1 court. We must adhere, therefore, to the conclusion announced in the opinion that the supposed defect in the proceedings taken to fix the liability of the defendant bank as an in-dorser is, upon the record now before us, insufficient to support the judgment.

The other points urged in support of the motion for a rehearing were sufficiently considered in the opinion now on file, and we find nothing in the argument of counsel that is adequate to alter the views heretofore expressed.

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PER CURIAM.

A, motion for a rehearing has been filed in this case. In support of the motion it is urged that the defendants in error asked an instruction in the nature of a demurrer to the testimony, which raised the question of the adequacy of the proof offered to fix the liability of tin; defendant bank as an indorser, and that this court in its decision overlooked the fact that such an instruction had been asked, and therefore erred in holding that the defendant bank waived or abandoned the defense of a want of proper demand and notice. It is only necessary to say that counsel are themselves mistaken in supposing that the record lodged in this court shows that such an instruction was asked. The record shows that at the conclusion of all of the evidence the plaintiff in error asked 10 instructions, all of which were refused, and that “the court, of its own motion,” gave the instruction which is quoted in full in the opinion. 64 Fed. 985. It nowhere appears in the record that the defendant bank asked any instructions, or that it attempted, by instructions or otherwise, to avail itself of the defense that a proper demand was not made upon the makers of the several notes in suit to fix its liability as an indorser. That is a defense we think, that was neither considered nor determined by the iria-1 court. We must adhere, therefore, to the conclusion announced in the opinion that the supposed defect in the proceedings taken to fix the liability of the defendant bank as an in-dorser is, upon the record now before us, insufficient to support the judgment.

The other points urged in support of the motion for a rehearing were sufficiently considered in the opinion now on file, and we find nothing in the argument of counsel that is adequate to alter the views heretofore expressed.

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66 F. 518, 13 C.C.A. 472, 1895 U.S. App. LEXIS 2660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-nat-bank-of-new-york-v-first-nat-bank-of-little-rock-ca8-1895.

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