Bearce v. Davis

CHIPMAN, P. J.

The transcript on appeal in this case was filed April 30, 1916. The time for filing opening brief by appellants expired May 22, 1916, and on that day the time for filing appellants’ brief was extended thirty days. No further extension of time was asked and none granted. The cause was placed upon the September calendar, 1918, and due notice thereof given to the attorneys for the respective parties. At the call of the calendar there was no appearance by either party and the cause was ordered submitted on the record. "We have before us nothing but the clerk’s transcript, showing the judgment-roll and the reporter’s transcript of the proceedings at the trial. We might, with propriety, affirm the judgment on the assumption that the appeal has been abandoned. We have, however, examined the record. The nature of the action and the defense thereto will be seen from the following instruction given by the court:

‘This is an action in which plaintiff seeks to recover judgment against defendant J. M. Davis upon a promissory note alleged to have been executed by defendant and thereafterwárds indorsed by him and delivered to B. H. Payne, who plaintiff claims subsequently sold and assigned said promissory note to plaintiff. Plaintiff alleges that said promissory note is for the principal sum of one thousand dollars, together with interest on said sum from January 12, 1915, until paid at the rate of six per cent per annum. Plaintiff contends that the promissory note sued on herein was. executed on the twelfth day of January, 1915, by defendant J. M. Davis, and sold and assigned before the maturity thereof by B. H. Payne, defendant’s indorsee, to plaintiff for a valuable consideration. Plaintiff alleges that no part of the principal sum nor any of the interest thereon has ever been paid by defendant.

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“By way of defense defendant denies the execution of the note pleaded in plaintiff's complaint, denies that he ever signed the same or that he ever indorsed it or delivered it to B. H. Payne.”

. The cause was tried by a jury and defendant had the verdict, and judgment followed in his favor.

Defendant testified to the circumstances surrounding the execution and delivery to Payne, in 1914, a note for like amount, but positively denied the execution of. any other note or of the note in suit. Payne testified quite as positively that this note was executed by defendant and delivered to him by defendant on the day of its date. Upon the question of execution and delivery of the note the evidence seems in conflict.