Smith v. Grabbe

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 421*—when evidence of adding of forged signatures immaterial. Where it is admitted that certain persons signed one note and that they signed’ no other note, evidence of the adding of forged. signatures by some of them to genuine signatures of others is immaterial.</p> <p>2. Bills and notes, § 372*—when joint course of action at common law must be proved as alleged. At common law when a joint cause of action ex contractu on a note is alleged, it must be proven as alleged against all the defendants, unless a defense personal to some of them is interposed, or unless some of the obligors are dead, and a judgment in such a cause of action which was not so proven must be reversed unless a recovery in such case is made possible by some statute.</p> <p>3. Bills and notes, § 372*—when variance between pleadings and proof in action in which joint judgment entered. In an action to recover on a promissory note where a joint judgment was entered against four of the makers of such note, it is immaterial that one of the defendants against whom plaintiff recovered is dead, where it appears that the other three against whom plaintiff recovered are alive at the time of the judgment, and it does not appear whether such deceased defendant was dead before the action was commenced.</p> <p>4. Bills and notes, § 335*—when all persons severally liable on notes may be joined in one suit. Under the Negotiable Instruments Act (Hurd’s Rev. St., ch. 98, secs. 7a, 7b, J. & A. ¶¶ 7625, 7626), providing that persons severally liable on promissory notes payable in money in certain cases may all or severally be joined in one suit, a plaintiff in an action to recover on such a note may allege the several liability on such note of as many parties as he may choose, and, on joining such parties in one suit, may on proper evidence recover a judgment against the parties joined.</p> <p>5. Bills and notes, § 372*—when proof of joint liability required where joint liability alleged. The Negotiable Instruments Act (Hurd’s Rev. St., ch. 98, secs. 7a, 7b, J. & A. ¶¶ 7625, 7626), providing for the joinder in one action in certain cases of parties severally liable on promissory notes, does not abrogate the rule of the common law requiring proof of a joint liability on such notes where such joint liability is alleged.</p> <p>6. Appeal and error, § 1802*—when cause may be remanded to permit, amendment of declaration. Where at the time of the reversal of a judgment the statute of limitations has run against the cause of action sued on, the Appellate Court will nevertheless remand the cause to permit ámendment of the declaration where such declaration can be amended so as to state a cause of action, notwithstanding the fact that the contemplated amendment may render the declaration liable to a plea of the statute of limitations as stating a new cause of action, as the Appellate Court cannot know that such a plea would be interposed.</p> <p>7. Appeal and error, § 1802*—when cause remanded to permit amendment of declaration without considering effect of such amendment. Where a judgment is reversed because the declaration does not support the judgment, and the cause is remanded to permit an amendment of the declaration so as to state a cause of action, the Appellate Court will not consider whether the contemplated amendment will state a new cause of action and so render the declaration as amended liable to a plea of the statute of limitations where appellant’s counsel in argument insists on such question, and where appellee asserts the contrary and further urges that the point was not preserved for review, and where neither party cites authority sustaining his contentions.</p>