Idaho Supreme Court, 1928

Debarre v. Tway

Idaho Supreme Court · Decided July 6, 1928 · Brinck, Baker, Varian, Lee, Givens, Taylor

270 P. 618; 46 Idaho 474; 1928 Ida. LEXIS 122

Counsel

D.E. Rathbun, for Appellant, cites no authorities on points decided. Holden Coffin, for Respondent Tway. The admission in evidence of Exhibit "E," the judgment in the case of Pettinger, Receiver, v. Tway , was not sufficient to establish that Pettinger, as receiver, owned the note in question here as against George C. Tway. Tway was not a party nor privy to the suit of Pettinger, receiver, against DeBarre, and it is established by the decisions of this court that a judgment can have no binding force upon one not a party nor privy to the action in which the judgment is rendered. ( Stocker v. Kirtley , 6 Idaho 795 , 59 P. 891 .)

Opinion of the Court

BRINCK, Commissioner.

Plaintiff brought suit against defendant to recover upon a promissory note executed by defendant, of which plaintiff claimed to be the holder by indorsement. Appellant intervened in the action, claiming to be the owner of the note, and prayed judgment against defendant thereon. Prior to trial, defendant paid the note to plaintiff, and upon the trial, judgment was entered for defendant and against intervenor, and intervenor appeals.

The only errors urged are as to alleged insufficiency of the evidence to support the judgment. Appellant introduced in evidence the note in question, bearing the indorsement of the payee to the plaintiff. The note was produced from the files of the probate court, where the action had been commenced and first tried, and there is no showing as to who was in possession of the note prior to its original introduction in evidence. Appellant offered no proof of his ownership of the note in question, except an original judgment in a case brought by intervenor against the plaintiff, to which defendant was not a party, and rendered a considerable time after defendant had paid the note to plaintiff. What this judgment was does not appear from the record, *476 since appellant neither caused the same to be copied into the record nor supplied a certified copy thereof as provided in C. S., sec. 6886, subd. 4. So far as the record shows, the evidence was insufficient to support any judgment other than that entered.

We recommend that the judgment be affirmed. Costs to respondent.

Baker, C., concurs. Varian, C., took no part in the decision.

The foregoing is approved as the opinion of the court. The judgment is affirmed, with costs to respondent.

Wm. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

Petition for rehearing denied.

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