Williams v. Miller

79 S.W.2d 707, 258 Ky. 210, 1935 Ky. LEXIS 135

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: March 1, 1935
• Status: Published

Opinion

Opinion op the Court by

Drury, Commissioner—

Reversing.

On April 4, 1934, F. F. Williams and H. L. Beckner filed this appeal from a default judgment that was taken against them by J. E. Miller on September 25, 1933.

This was an action on a note by which the Beaver Motor Sales Company promised to pay to the order of Miller on June 9, 1930, at Wayland, Ky., $700 with interest. On the back of this note were the signatures, of Williams and Beckner. Such unexplained signatures made them indorsers. See section 3720b-63, and subsection 6 of section 3720b-17, Ky. Stat., and Hay v. Roberts, 196 Ky. 831, 245 S. W. 881.

By the provisions of sections 3720b-70 to 3720b-88, inclusive, Ky. Stats., the requirements for presentation for honor are set out. By sections 3720b-89 to 3720b-118, inclusive, Ky. Stats., the provisions regarding notice. of dishonor are set out. Since there is nothing in this record to indicate that presentation and notice of dishonor were not required then these indorsers were entitled to such notice. See section 3720b-89, Ky. Stats. Miller^ failed to allege in his petition that such notice was given, or anything to show that it was waived, or was not required; hence his petition was defective, and it did not state a cause of action against these appellants and does not support the judgment he obtained against them. See Powers v. Hardesty, 250 Ky. 522, 63 S. W. (2d) 616.

Therefore, the judgment is reversed, for a new trial, with leave to Miller to amend his petition; but as appellants should have raised this question by demurrer to the petition and failed to do so, they shall be liable for the costs of this appeal and all costs in the trial court that resulted from such failure. See subsection 2 of section 93 of the Civil Code of Practice.

Judgment reversed.