Kellogg v. Pacific Box Factory

Sharpstein, J.: On the trial of this action, upon a promissory note, in which the makers and indorsers are sued, the plaintiff offered and read in evidence the note, and then, in the language of the statement on motion for a new trial, “ offered in evidence a notice of protest in the words and figures following, to wit.” This is followed by what purports to be a copy of a notary’s protest, a copy of the note protested, and a certificate of the notary that the parties to the note had been duly notified of said protest. The respondents, two of the indorsers of said note, “ objected to the admission of said notice of protest, on the ground that the same was incompetent, irrelevant, and inadmissible ” ; and then proceeded to specify wherein said notice was incompetent and irrelevant.

Strictly speaking, the offer did not embrace a “ notice of protest ”; and the objection was, doubtless, to the introduction of the notary’s certificate that such a notice had been given. The objection was sustained, plaintiff excepted, and without introducing any evidence, rested. The respondents moved for a nonsuit, which was granted. A motion for a new trial upon a [329]statement was denied; and from the judgment and order denying a new trial the plaintiff appealed.

The ruling of the Court upon the objection of the respondents to the introduction of “ the notice of protest ” in evidence is assigned as error by the appellant. If the notary’s certificate, “ that the parties to the note ” had “ been duly notified of the protest thereof,” was competent and relevant testimony, the exception to the ruling of the Court was well taken.

By § 795 of the Political Code, “ the protest of a notary, under his hand and official seal, of a bill of exchange or promissory note, for non-acceptance or non-payment, stating the presentment for acceptance or payment, and the non-acceptance or nonpayment thereof, the service of notice on any or all of the parties to such bill of exchange or promissory note, and specifying the mode of giving such notice, and the reputed place of residence of the party to such bill of exchange or promissory note, and of the party to whom the same was given, and the post-office nearest thereto, is primary evidence of the facts contained therein.” The authors of this provision seem to have contemplated a statement of the service of the notice on any or all of the parties to a protested bill or note, in the protest itself. A literal compliance with a requirement that a protest should contain a statement that a notice of it had been served on all of the parties to the protested bill or ■ note might be possible, but would be contrary to usage, so far as we are at present advised. From which we infer, that it was the intention of the Legislature that the certificate of a notary that notice of a protest had been given to all the parties to a protested bill or note might be attached to the protest, and be admissible in evidence, the same as the protest itself. Such we think to have been the practice at the time of the enactment of the Code referred to, and the Legislature seems to have had that practice in view when enacting the clause above quoted.