
    No. 796
    MULLIN v. COLE
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5593.
    Decided April 13, 1925
    677. JUDGMENTS AND DECREES—Maker of cognovit note cannot take judgment by confession against co-maker where by the language of the note, that right is confined solely to the payee.
    Attorneys—F. 0. Levering for Miller; B. E. Sapp and Robert L. Carr for Cole; all of Mt. Vernon.
   SULLIVAN, J.

J. W. Mullin filed a motion to vacate the judgment upon a first cause of action in the ■Cuyahoga Common Pleas, the basis of which action was a cognovit note. The note was executed by-the Mt. Vernon Foundry and Engineering Co. to the Knox County Savings Co. and signed by Mullin, treasurer of the Foundry Co. and Robert and Pearl Cole as co-makers.

The indorsement showed the note was paid by Robert Cole it being indorsed as follows: “Pay to Robert S. Cole or order without recourse.” Cole took judgment against Mullin on the note so assigned. The Common Pleas overruled Mullin’s motion and error was prosecuted. The Court of Appeals held:

1. The note having been paid it could not become the basis for full recovery thereon, but could .only be used in an evidential character in a suit for contribution against the other joint makers of the note.

2. Savings Bank only had the right to judgment by confession, and Cole as co-maker had no such right.

3. It is claimed that this court has no right to presume from the record that one of the makers, Robert Cole, is identical with the plaintiff below. While this is true, it is clear, from the record, that there is an inference which is just as evidential as positive evidence that the parties are one in identity. Judgment of lower court reversed and hereby awarded to Mullin.  