Opinion
No. 39004.
January 25, 1954.
1. Appeal — bills and notes — peremptory instruction for defendant — proper.
In action for principal and interest allegedly due on three trade acceptances executed by defendants and allegedly owned by plaintiffs, where plaintiffs' only evidence was based upon depositions, stricken at trial, containing statements that the acceptances were orally assigned to plaintiffs for suit only, and that no consideration was paid therefor, and that plaintiff owned no interest therein, and plaintiff admitted that granting of peremptory instruction for defendants as to such three acceptances was correct, judgment thereupon would be affirmed without intimating whether true owner of such acceptances could thereafter recover thereon.
2. Depositions — oral examination — statutory affidavit — not applicable to nonresident.
In same action for principal and interest allegedly due upon three other negotiable trade acceptances executed by defendants and allegedly owned by nonresident plaintiffs, exclusion of deposition of one plaintiff, who was a resident of New York City on strength of statute, which rendered depositions inadmissible on filing of affidavits stating that oral examination in open Court was necessary to attainment of justice, was reversible error. Sec. 1711, Code 1942.
3. Bills and notes — proof of ownership — required.
Where record did not contain anything showing assignment of such latter three acceptances to plaintiffs or plaintiffs' ownership thereof, and defendants denied such assignment and ownership, it was necessary for plaintiffs to prove their ownership.
4. Appeal — partial trial — cause reversed and remanded.
In such case, where plaintiffs were unable to prove their ownership of such latter three acceptances because of wrongful exclusion of deposition containing such evidence, Supreme Court would not enter judgment on partial trial of case but would reverse and remand cause for a new trial.
Headnotes as approved by Roberds, P.J.
APPEAL from the circuit court of Carroll County; HENRY L. RODGERS, J.
Rupert Ringold, Winona; R.H. J.H. Thompson, Jackson, for appellants.
I. The circuit court erred in sustaining the motion of appellees to strike the deposition of Samuel S. Salitan, one of the plaintiffs and appellants, and in striking same from the record in the circuit court. Milner Products Co. v. Salitan, 215 Miss. 459, 61 So.2d 303; Sec. 1711, Code 1942.
II. The circuit court erred in sustaining the motion of appellees for a directed verdict, and erred in entering its judgment in favor of appellees and against appellants, and erred in failing to render judgment in favor of appellants and against appellees. Credit Industrial Co. v. Adams County Lbr. and Supply Co., 215 Miss. 283, 60 So.2d 790; Milner Products Co. v. Salitan, supra; Salitan v. Horn, 212 Miss. 794, 55 So.2d 444.
Robertson Horton, H.T. Holmes, Winona, for appellees.
I. The decision in the case of Milner Products Company v. Salitan, et al., 215 Miss. 459, cited by counsel for appellants, insofar as it applies to the meaning, import and effect of Section 1711 of the Mississippi Code of 1942, is incorrect. The said decision practically amounts to an amendment of a legislative act by judicial decision in that it, the decision, rewrites the said section to read: "When the deposition of a party or other interested witness, resident within the State of Mississippi," and that this amendment by judicial interpretation comes after the said statute had been in effect since 1871, during all of which time its meaning had — so far as reported cases go — never been challenged by bench or bar.
II. No judgment can be rendered in this Court in favor of appellants. This Court has now before it no tendered evidence of the existence of any trade acceptances made by the appellees; and, therefore, can render no such judgment in favor of appellants as suggested by them in their brief.
III. The Court could not render a judgment on the trade acceptances purported to be exhibits to the deposition of Samuel S. Salitan for the reason that there was a material variance between the pleadings of appellants and the said purported exhibits. This variance was timely objected to by appellees and appellants did not amend. Had they amended, appellees should have and would have been given an opportunity to plead to the amendment.
IV. The date of a bill, note or trade acceptance is a material matter. Heaverin v. Donnell, 15 Miss. 244, 7 Sm. M. 244; Sec. 166, Code 1942.
V. The allegata et probata must agree. Carter v. Preston, 51 Miss. 423.
Appellants sued appellees to recover the principal and interest of three negotiable trade acceptances each for the principal sum of $105.00. These acceptances had been executed by appellees to East Coast Discount Corporation. Appellees, as defendants, by plea, admitted the execution of the acceptances but denied that plaintiffs were the owners thereof or had any interest therein.
(Hn 1) Samuel S. Salitan, a member of plaintiff partnership, and Miss Elizabeth Gould, Secretary of the East Coast Discount Corporation, a New York corporation, both testified by deposition that the acceptances were orally assigned to plaintiffs for suit only; that no consideration was paid and plaintiffs owned no interest in the acceptances. Both depositions were stricken at the trial. Plaintiffs introduced no other testimony. The trial judge granted defendants a peremptory instruction, and judgment was entered accordingly. Counsel for appellants on this appeal, frankly admit the action of the trial judge, under the circumstances confronting him, was correct. Therefore, the judgment, as to these three acceptances will be affirmed, without intimating whether the true owner of these instruments can hereafter recover thereon.
Appellants, as plaintiffs, in this same action, sued appellees to recover the principal and interest on three other trade acceptances, each for $77.50, bearing interest from maturity. These instruments were payable to Sterling Materials Company, Inc. The declaration asserted "the said plaintiffs became the bona fide holders in due course of said notes, without notice, . . ." In a bill of particulars filed by plaintiffs they again asserted, in substance, that plaintiffs purchased said acceptances for value and without notice of any defense thereto, and the instruments were assigned to them. Appellees, as defendants, by answer, admitted they executed the acceptances to the named payee therein, but denied plaintiffs had purchased the acceptances, and denied they were bona fide owners thereof, and denied the instruments had been assigned to the plaintiffs. Purported copies of the instruments were exhibited to the declaration but such copies show no endorsement or assignment to plaintiffs by the payee. In other words, the purported copies do not show the plaintiffs to be the owners thereof or to have any interest therein.
(Hn 2) Plaintiffs, at the trial, offered in evidence a deposition of Mr. Samuel S. Salitan, one of the plaintiffs to the action. He was a resident of the City of New York. His testimony showed plaintiffs to be the owners of the acceptances. Defendants had made and filed in the case affidavit of M.D. Stewart, one of the defendant partners, that in the opinion of defendants oral examination of Mr. Salitan was necessary to the attainment of justice. Mr. Salitan was not personally present at the trial. Defendants objected to introduction of the deposition of Mr. Salitan, urging it was not admissible, in these circumstances, under Section 1711, Miss. Code 1942. The learned trial judge, with the lights then before him, reluctantly sustained the objection, indicating he was very doubtful that Section 1711 applied to non-resident party to the suit. Ten days thereafter this Court held that Section did not apply to such a party. Milner Products Co. v. Salitan, 215 Miss. 459, 61 So.2d 303. The exclusion of said deposition was, therefore, error. Plaintiffs introduced no other proof. Defendants offered no evidence. Defendants moved the court for a peremptory as to the three acceptances under consideration, which motion was sustained and judgment entered accordingly. Plaintiffs say that exclusion of said deposition was reversible error, which, of course, it was.
(Hn 3) However, appellants urge that notwithstanding the exclusion of said deposition, they are entitled to a judgment, since the declaration asserted, and the answer of defendants admitted, that they, the defendants, executed the said three acceptances. Defendants did so admit but they denied the instruments had been endorsed, assigned, or transferred to the plaintiffs, and denied plaintiffs owned them or had any interest in them. There is nothing in this record, which was admitted in evidence, showing such assignment to plaintiffs or their ownership of the acceptances. In that situation it was necessary for plaintiffs to prove their ownership. (Hn 4) This they were unable to do when the deposition was not admitted. When the deposition was excluded and appellees' motion for a peremptory was sustained, such evidence as they might have been privileged to offer, of course, was not adduced. Consequently no judgment can be entered here upon a partial trial of the case. It must be reversed and remanded for a new trial. The costs of this appeal will be assessed equally between the parties.
Affirmed in part and reversed and remanded in part.
All Justices concur except Gillespie, J., who took no part.