Smith v. Hyer

ALLEN, P. J.

The action is one upon a promissory note executed by defendant to the assignor of plaintiff. The lat

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ter is shown by the record to be an attorney at law and appearing in the action

in propria persona.

The note was admitted in evidence together with evidence tending to show that" the assignment to plaintiff was one for collection purposes only.

Upon the conclusion of the evidence offered on behalf of plaintiff a motion for a nonsuit was granted, the effect of which was to grant a judgment of dismissal as against plaintiff. The trial court, as appears from the reasons assigned for granting such motion, was of opinion that an action brought by an attorney upon a note so assigned could not be maintained. This upon the theory that the policy of the law forbids such a transaction, and courts should not grant relief where such facts are made to appear. The plaintiff did not except to the ruling of the court in granting this motion, but thereafter in due time interposed a motion for a new trial based upon newly discovered evidence material for the party making the application which he could not with reasonable diligence have discovered and produced at the trial, and supported such motion by an affidavit used upon the hearing. This affidavit was largely cumulative, but tended in a degree to establish the grounds of the motion, and was by the court held sufficient for the purposes intended. The court upon the hearing of the motion for a new trial granted the same, and from the order granting the new trial defendant appeals under the alternative method.

A motion to dismiss the appeal was, by stipulation, ordered submitted with the appeal upon the merits. Entertaining the views hereinafter expressed, we do not consider it necessary to discuss the matters involved in the motion to dismiss the appeal, which, even if sustained, would but have the effect to affirm the order, which result is attained by an affirmance upon the merits, which we think proper in the premises.

It is settled law in this state that the improper granting of a nonsuit is an error of law, and prior to the amendment of section 647, Code of Civil Procedure (Stats. 1909, p. 586), could be reviewed by an appellate court only where an exception was entered at the time of the ruling and the same was specified in the motion as grounds for a new trial, or upon an appeal from the judgment based upon a bill of exceptions disclosing that such exception was taken at the time the order