Finnall v. Merriman

ALLEN, P. J.

The action was brought upon a promissory note executed by the defendant to plaintiff’s assignor. The answer set up facts showing there was no consideration there

[610]

for; that the note was executed to one Rogers, plaintiff's assignor, who was agent for a life insurance company, under an agreement that if defendant’s application for a policy of insurance was declined the note was to be returned; that defendant’s application was rejected and no policy ever issued; that Rogers represented to defendant that he would make application to another company for a like policy and that if upon receipt of said policy the defendant, after an examination of the same, was dissatisfied, therewith, the privilege would be given him, to return such policy without any liability for the payment of the premium, or of the note theretofore executed; that a second company did issue a policy; that defendant within the stipulated time examined the same, was dissatisfied therewith and returned the policy to the company; that Rogers, in violation of his agreement, transferred the note to plaintiff. It was alleged that plaintiff did not purchase or acquire the note in the ordinary course of business; that he had knowledge at the time of said purchase of facts and circumstances concerning the making of the note, and that the price paid therefor by plaintiff was grossly inadequate to the amount expressed on the face of the note, sufficient to arouse the suspicions of an ordinarily prudent man and put him on inquiry as to the consideration of said note; denied that plaintiff was the

tona fide

holder of the note for value.

The case was tried by a jury, which returned a verdict for defendant. Judgment was -rendered upon such verdict June 24, 1908. Thereafter, on July 14, 1908, plaintiff moved for a new trial, specifying in said motion that the same would be made upon a statement of the case. When this motion for a new trial was denied, if, in fact, it was denied, is not made to appear. The appeal is from the order denying a new trial.

The transcript contains no statement settled or signed by the judge. Rule III of the court is violated by the omission to give the name of the judge whose decision it is sought to review. “When notice is given of a motion for a new trial, to be made on a statement of the case, it is the duty of the moving party to propose such a statement, and have it settled, signed, and certified by the judge. The statement must be authenticated in that way before it can be filed with the clerk of the court. . . . But the signature and certificate of the judge are indispensable. Without them there is no statutory