Whitcomb v. Huse

California Court of Appeal May 15, 1918 No. Civ. No. 2157. Civ. No. 2157.Published

Before: Works

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Holding. The court held that a notary's certificate of protest is only admissible as prima facie evidence under section 795 of the Political Code if it includes the reputed place of residence and nearest post office of the parties when notice of dishonor is served by mail.

Issues

Whether a notary's certificate of protest is admissible as prima facie evidence if it fails to state the reputed residence and nearest post office of the parties.
Whether the rule in Kellogg v. Pacific Box Factory applies when notice of dishonor is given by mail rather than by personal delivery at a place of business.

Disposition. reversed

Quotations verified verbatim against the opinion

“It is our opinion that a “protest” is prima facie evidence of the matters stated in it only when it contains a recital of all the facts material to the ease in which it is offered in evidence and which are mentioned in section 795.”

“The section makes the “protest” prima facie evidence of things of which it ordinarily would be no evidence at all. It allows a departure from the usual rules of evidence, and those who would avail themselves of its provisions must, therefore, bring themselves clearly within its terms.”

Synopsis

Negotiable Instruments—Notice of Protest by Mailing—Statement in Certificate of Protest.—Where a notice of protest of a promissory note is given by mail, the provisions of subdivision 3 of section 3144 of the Civil Code must be followed, which permits the mailing to residence alone, and a protest which recites that notice was mailed to the office of the indorser is not prima facie evidence of the matters stated therein as declared by section 795 of the Political Code.

WORKS, J.,

pro tem.

The questions arising on these two appeals are identical. References to the facts and to the parties will be according to the record in

Whitcomb

Huse,

The action was brought to recover on two promissory notes, Huse being sued as a maker and Woodruff as an indorser. Judgment went for the plaintiff and Woodruff appeals.

It is contended by the appellant, among other things, that the trial court erred in admitting in evidence the notary’s certificates of protest of the notes sued upon and also his certificates of notice of protest. The ground of the contention is that the documents failed to comply with the terms of section 795 of the Political Code, which provides that protests, stating certain facts, including “the reputed place of residence” of the party to a bill or note and of the party to whom it was

[249]

given, “and the postoffice nearest thereto,” are

prima facie

evidence of the matters stated in them. Both of the instruments which were received in evidence are to be considered together in determining whether the “protest” is so complete in its subject matter, under section 795, as to make it

prima facie

evidence of the matters stated in it

(Kellogg

Pacific Box Factory,

57 Cal. 327, 329); although, strictly speaking, but one of those instruments was the protest. Taking them both together, however, they make no showing as to the reputed place of residence of either Huse, the maker of the paper, or of the appellant, the payee. They show, only, as far as address is concerned, the location of the “office” of Huse, except that they show that the notice of protest was mailed to Huse at that address and to the appellant at a certain designated room in the “Merchants National Bank Bldg., Los Angeles, Cal.” Notwithstanding this state of the “protest,” the respondent insists that the documents were admissible in evidence upon the authority of

Whitcomb v. Huse

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Synopsis

WORKS, J.,

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