Opinion of the Court-Stockslager, J.

troverted by counsel for appellants, and it is only where it is plainly apparent from the record that the court has abused this discretion that the appellate court will disturb the action of the lower court. The notice served upon counsel for appellants says the motion to set aside the judgment will be made upon the pleadings, files, etc., in the case, together with the affidavit of John B. Goode, county attorney of defendant county. The record shows that on the hearing of said motion the entire record was considered by the court. If it occurred to the learned judge that the complaint did not state a cause of action (as we presume it did) against the defendant, and that the demurrer then on file would have to be sustained, or, if filed in time, would have been sustained, and no judgment entered in favor of the plaintiffs, can it be contended that he abused his discretion? We think the discretionary power granted him is for the purpose of seeing that all parties have cqual and exact justice. It is not for this court to say whether the complaint was sufficient or not; but it was a part of the duty of the trial court on this motion to take the sufficiency of the complaint into consideration, and, if he believed it insufficient to warrant a recovery, it was his duty to, and undoubtedly he did, consider it in passing upon the motion. Judgments of the character of the one under consideration are entered up by the clerk, the judge of the court knowing nothing of the pleadings or facts, unless called to his attention by a motion to vacate the judgment, or some other pleading striking at the validity of the judgment. If there are any class of cases in which the trial court should not be hampered in the exercise of its discretion, it is the kind under consideration.

Counsel urges that there was "no affidavit of merits filed, and no answer showing a meritorious defense was filed or offered to be filed." He does not call our attention to a statutory provision requiring either, and there is no merit in this contention. If the complaint does not state a cause of action, a demurrer is sufficient; and of what the conclusions of the trial court were on this question when this motion was before it we are not informed. He next says: "No imposition of terms was made by the court as a condition precedent to setting

Opinion of the Court-Quarles, C. J., Concurring.

aside said judgment, as required by statute." This was also discretionary with the court. He complains that "no findings were made by the court." We do not think it necessary. If he thought the showing was sufficient, and that in the furtherance of justice the judgment should be set aside, that was enough, and no findings were necessary. The judgment of the lower court is affirmed.

Sullivan, J., concurs.

QUARLES, C. J., Concurring.-The conclusion reached is correct. The ordinary rules requiring an affidavit of merits to accompany an application to set aside a judgment entered upon default by the clerk do not apply to a case where the complaint does not state a cause of action. The complaint in this action was insufficient, in that it failed to state that the itemized statement presented to the board of commissioners, showing the fees received by the plaintiff sheriff, was verified by him. (See Campbell v. Board, 4 Idaho, 181, 37 Pac. 329.) It should be verified by the officer himself. The complaint should have alleged that the plaintiff officer was not in arrears as to public funds collected by him, as without such showing the board of commissioners could not, under section 1771 of the Revised Statutes, allow him the claim, or any part thereof, sued on; nor could he, in the absence of such showing, recover judgment therefor. The complaint must allege the facts necessary to be proven.

Argument for Appellant.

(June 10, 1901.)

YATES v. SPOFFORD.

165 Pac. 501.]

NEGOTIABLE INSTRUMENTS-HOLDER FOR VALUE.-A suit on a promissory note payable to A B, agent, and by him sold, indorsed and delivered before maturity and for a valuable consideration can be maintained by the holder. PRACTICE-BURDEN OF PROOF.-Where the answer admits the execution of the note, but denies that plaintiff is the owner by purchase before maturity for a consideration and alleges want of consideration in the holder, the burden of proving such allega tions is on him.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

J. H. Richards and C. C. Cavanah, for Appellant.

The appellant admits that Harry Timmons did indorse said note before maturity, but appellant contends that Harry Timmons, was not the payee of such note, and that the real payee never indorsed such note, and therefore this appellant should not be bound by such an indorsement, as he did not indorse such note for the payee therein named, but only indorsed the same as an individual and not as the owner or payee of such note. If the word "agent" as used in such note imports any notice whatever, then the respondent was bound by such notice, and cannot deprive the appellant of the right to show that as between the payee named in such note and the appellant there was no consideration whatever for the execution of such note, and the respondent also knew, at the time he claims to have received such note, that Harry Timmons represented some person other than himself in such transaction, from the fact that it so appears upon the face of this note, and also appears from the fact that Harry Timmons indorsed such note as an individual only and not as the payce of the same. (Thurber v. Cecil Nat. Bank, 52 Fed. 513; Nichols v. Frothingham, 45 Me. 227, 71 Am. Dec. 539; First Nat. Bank of Angelica v. Idaho, Vol. 7—47.

Argument for Respondent.

Hall, 44 N. Y. 397, 4 Am. Rep. 698; National Life Ins. Co. v. 'Allen, 16 Mass. 399; Bank of New York v. Bank of Ohio, 29 N. Y. 619; Black v. Enterprise Ins. Co., 33 Ind. 223; Farmington Sav. Bank v. Fall, 71 Me. 19.)

Wyman & Wyman, for Respondent.

As defendant was not deprived of the right to show that there was no consideration for the note or its failure or any other defense he wished to make, appellant has no cause for complaint and it is immaterial what the effect of the word "agent" may be. So that we might safely concede all that appellant claims, yet as its effect would be only as he claims, to allow the defense to be made showing want or failure of consideration and anything else that he pleaded, and he was allowed to do so, but refused to make any defense, this cause must be affirmed. The vital distinction between the power to pledge and power to sell is clearly stated in Allen v. St. Louis Bank, 120 U. S. 32, 7 Sup. Ct. Rep. 460. The note was properly declared upon according to its legal effect, even had it not been pleaded in haec verba. "A note payable to John L. Dunham, agent or bearer, may be declared upon as payable to John L. Dunham. The note was described according to its legal effect." It is a word of description only and does not change the legal effect. (Preston v. Dunham, 52 Ala. 217; 14 Am. & Eng. Ency. of Pl. & Pr. 510, and cases cited under note 3; Chamberlain v. Pacific Wool Grow. Co., 54 Cal. 103; Bank of Genessee v. Patchin Bank, 19 N. Y. 315, 320; Tideman on Commercial Paper, sec. 85, 152; Randolph on Commercial Paper, sec. 156, p. 238; Meacham on Agency, secs. 432, 433, 438, 442, pp. 282, 283; Metcalf v. Williams, 104 U. S. 98.) The denial of ownership raises no issue, as the presumption is that the indorsee is a holder for value and the burden of proof is on the party denying it. (Poorman v. Mills, 35 Cal. 118, 95 Am. Dec. 90; Scribner v. Hanke, 116 Cal. 613, 48 Pac. 714; 4 Am. & Eng. Ency. of Law, 2d ed., 320b.) Appellant admitted the assignment and cannot deny the title. (Randolph on Commercial Paper, sec. 1651, p. 752.)

Opinion of the Court-Stockslager, J.

STOCKSLAGER, J.-This action is based upon a promissory note, to wit:

"$136.75.

Boise, Idaho, April 28th, 1899. "Six months after date, for value received, I, we, or either of us, promise to pay to the order of Harry Timmons, agent, $136.75, at the Capital State Bank of Idaho, Limited, Boise, Idaho, without defalcation or discount, with interest at the rate of six per cent per annum from maturity until paid, both before and after judgment. It is also stipulated that, should this note be collected by an attorney, whether by suit or otherwise, per cent shall be allowed the holder as attorney's fees.

(Signed) "JUDSON SPOFFORD.” By the complaint it is shown that this note was sold, indorsed, and delivered to plaintiff by Harry Timmons before maturity for a consideration, and that he is still the owner and holder thereof. The answer denies that on the twentyeighth day of April, 1899, or at any other time, defendant made, executed, or delivered to Harry Timmons this note or any other note. Admits that the defendant executed the note, but alleges that there was no consideration of any nature or kind for the execution of said note, all of which was well known to said plaintiff prior to the time such note came into the possession or under the control of said plaintiff. Alleges that Harry Timmons was agent of the Equitable Life Insurance Company of New York at the time of the execution of said note; that said note was executed and delivered to the said Harry Timmons as the agent of the said Equitable Life Insurance Company, and was given with the distinct understanding that the same was to be for the premium of the life insurance policy to be executed and delivered by said Equitable Life Insurance Company for $5,000, and that the same was to be delivered to this defendant within ten days from April 28, 1899, or upon failure so to do, the said note was to be returned to this defendant; that the said life insurance policy was never delivered to defendant—all of which was well known to plaintiff prior to the time of his alleged ownership of said note, and all of which more fully appears by a written contract made by the said Harry Timmons, agent of the said Equitable Life Insurance Company, which contract is as follows: