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3 Ind. 541

Evans v. Secrest

Indiana Supreme Court

Decided December 15, 1852

Indiana Supreme Court · decided 1852-12-15

<p>A note executed to Lorena Emerine Evans, and assigned on the back thereof to the plaintiffs by George Smith and Lorena Emerine Smith, was filed before a justice of the peace as a cause of action, and a judgment rendered against the maker by default. There was no averment showing that Lorena Emerine Evans and Lorena Emerine Smith were the same person. On appeal, in the Circuit Court, the defendant moved the Court to dismiss the suit. Held, that the motion should have been sustained.</p>

Relies on Throgmorton v. Davis

Decided 1852-12-15

Perkins, J.

¶1Suit before a justice of the peace upon a promissory note and indorsement as follows:

¶2“For value received, I promise to pay unto Lorena Emerine Evans the just and full sum of 48 dollars on or before the first day of January, 1849, as witness my hand and seal. Martha Evans [seal].”

¶3Indorsement on the back thereof—

¶4“We assign the within note to Secrest and Walls, December 27, 1849. George Smith, Lorena Emerine Smith J Judgment before the justice by default.

¶5Appeal to the Circuit Court. Motion there by the defendant that the suit be dismissed for want of a sufficient cause of action. Motion overruled, and judgment for the plaintiffs for the amount of the note, &c.

¶6We think the motion to dismiss should have been sus*542tained. It does not appear, even prima facie, by the record that the plaintiffs have an assignment of the note from the payee thereof. It should so appear. There should be an averment showing the identity of Lorcna Emerine Evans and Lorena Emerine Smith. See Vandagrift v. Tate et ux., 4 Blackf. 174.

J. M. Hanna, for the plaintiff.J. Cowgill, for the defendants.Per Curiam.

¶7The judgment is reversed with costs. Cause remanded, &c.

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