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20 Kan. 655

Gross v. Funk

Supreme Court of Kansas

Decided July 15, 1878

Supreme Court of Kansas · decided 1878-07-15

This action is here on error from Cowley district court. 'The action was brought by Gross, as plaintiff, on a promissory note and mortgage made by one Leanah Funk, in her lifetime, to Isaac Parker, Jr. Gross was an innocent purchaser for value of said note and mortgage, before the maturity thereof. W. J. Funk was sued as administrator of the estate of said Leanah Funk, deceased, and John W. Funk was joined as co-defendant, being the devisee of said Leanah.

Key passage — most relied on by later courts

““A finding made and entered in the case-made by the judge while settling and signing such case, showing that such notice has been given, is sufficient evidence, prima facie, to prove the fact that such notice was given.” (Haynes v. Cowen, 15 Kan. 637, 645, 646 .)”

quoted by 1 later decision, including The Westchester Fire Insurance v. Coverdale

Relies on Cicotte v. Gagnier

Good law ✅— No negative treatment on recordhow we know

Decided 1878-07-15

How this case has been cited

Cited by 12 later decisions — most recently March 1933

11 state decisions

501878188018901900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1The opinion of the court was delivered by

Valentine, J.:

¶2Where due notice of the time and place of settling and signing a case-made for the supreme court has been given to the adverse party, such party cannot ignore such notice, or treat it as a nullity, although the time fixed in such notice for settling and signing such case may be earlier than the ease could properly be settled and signed. (Nelson v. Becker, 14 Kas. 509, 510, and cases there cited.) And where the judge of the court, in the absence of the adverse-party, and without any objection from him or from any other person, settles and signs the case upon such a notice, and nothing further is done concerning the same, the supreme court will, in the absence of other irregularities, treat the case as valid.

¶3A finding made and entered in the case-made by the judge while settling and signing such case, showing that such notice has been given, is sufficient evidence, prima facie, -to prove the fact that such notice was given. (Haynes v. Cowen, 15 Kas. 637, and opinion of Brewer, J., p. 645, 646.)

¶4The defense of usury cannot be set up against a negotiable promissory note while in the hands of an innocent indorsee who purchased the same before maturity. (Day v. Walker, 16 Kas. 326, 332; Holden v. Clark, 16 Kas. 346; Rahm v. Bridge Co., 16 Kas. 530; Mechanic’s Bank v. Crow, 66 N.Y. *65785; Cicot v. Gagrin, 2 Mich. 381; 1 Hill. on Mort. 574; 1 Pars. Notes, 279, 280; Gen. Stat., ch. 14, §3.

¶5The judgment of the court below will be reversed, and cause remanded for further proceedings.

All the Justices concurring.
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