Capital Savings Bank v. Reel

Appeal by plaintiff from an order of the Superior Court of the County of Sacramento denying motion for a new trial Denson, J.

Action on a joint and several promissory note. The note was executed at the city of Sacramento by the defendants John Reel and Peter McGraw, as copartners, under firm name of Reel & McGraw, and by the defendant J. B. Cave,' to the plaintiff, May 9th, 1878, for $2,000, payable one month after date, with interest at one per cent, per month, compounding monthly. The answer of the defendants Reel & McGraw was stricken out by the Court, and judgment was given against them as by default. Defendant Cave answered separately, and after denying all indebtedness to plaintiff, and the non-payment of the note, set up affirmatively the following defenses:

And for a further defense this defendant avers that on or about the 9th day of May, A.r>. 1878, said defendants John Beel and Peter McGraw, under the firm name of Beel & McGraw, and as co-partners under such firm name, were indebted to plaintiff in the sum of two thousand dollars, for and on account of moneys before that time had and received by them from plaintiff, and on that day this defendant executed said promissory note, with said Beel & McGraw as surety thereon, for them to plaintiff, and said note was thereupon delivered to and received by plaintiff to secure said indebtedness, and with notice and knowledge by plaintiff that this defendant executed the same as surety for said Beel & McGraw, and in no other way.

That prior to the maturity of said note this defendant notified said plaintiff that if said note was not paid at the maturity thereof by said Beel & McGraw, to proceed, without delay, to collect the same.

That on or about the 3d day of August, 1878, plaintiff was wrongfully and without right in the possession of said note, and then claimed and pretended that the same had not been paid, whereupon this defendant requested plaintiff to bring an action upon said note and to sue out a writ of attachment upon the same, and under said writ to levy upon and seize certain property of said Beel & McGraw as surety, for the payment of any judgment which might be recovered in such action, whereupon, on the day last mentioned, plaintiff commenced this action, and on the same day filed therein the affidavit and undertaking required by law for the issuing of said writ, and afterwards, on the same day, such writ was issued in due form out of this Court and delivered to the Sheriff of said county, and on the same day, under and by virtue of said writ, said Sheriff levied upon and seized a large amount of personal property, which then was in the possession of and belonged to said Beel & McGraw, and was of the value of four thousand dollars, and was more than sufficient to satisfy plaintiff’s said demand, together with all the costs of this action, and the costs and expenses of taking and keeping said personal property under said attachment.