
    G. J. Gross v. W. J. Funk, et al.
    
    This action is here on error from Cowley district court. 'The action was brought by Gross, as plaintiff, on a promissory note and mortgage made by one Leanah Funk, in her lifetime, to Isaac Parker, Jr. Gross was an innocent purchaser for value of said note and mortgage, before the maturity thereof. W. J. Funk was sued as administrator of the estate of said Leanah Funk, deceased, and John W. Funk was joined as co-defendant, being the devisee of said Leanah. Plaintiff demanded judgment for $470.73, and interest, and for the foreclosure of the mortgage. Usury was pleaded as a partial defense. A demurrer to the answer was overruled, and the district court, at December Term 1877-, gave judgment for plaintiff for $362.10, and interest, and decreed the foreclosure of the mortgage, etc. Plaintiff brings the case here, claiming that the judgment is too small, and assigns as error the overruling of his demurrer. Defendants,, claiming that the case-made was not legally and properly settled, moved to dismiss the petition in error.
    
      Pryor, Hager & Pryor, for plaintiff.
    
      Jennings & Buckman, for defendants.
   The opinion of the court was delivered by

Valentine, J.:

Where due notice of the time and place of settling and signing a case-made for the supreme court has been given to the adverse party, such party cannot ignore such notice, or treat it as a nullity, although the time fixed in such notice for settling and signing such case may be earlier than the ease could properly be settled and signed. (Nelson v. Becker, 14 Kas. 509, 510, and cases there cited.) And where the judge of the court, in the absence of the adverse-party, and without any objection from him or from any other person, settles and signs the case upon such a notice, and nothing further is done concerning the same, the supreme court will, in the absence of other irregularities, treat the case as valid.

A finding made and entered in the case-made by the judge while settling and signing such case, showing that such notice has been given, is sufficient evidence, prima facie, -to prove the fact that such notice was given. (Haynes v. Cowen, 15 Kas. 637, and opinion of Brewer, J., p. 645, 646.)

The defense of usury cannot be set up against a negotiable promissory note while in the hands of an innocent indorsee who purchased the same before maturity. (Day v. Walker, 16 Kas. 326, 332; Holden v. Clark, 16 Kas. 346; Rahm v. Bridge Co., 16 Kas. 530; Mechanic’s Bank v. Crow, 66 N.Y. 85; Cicot v. Gagrin, 2 Mich. 381; 1 Hill. on Mort. 574; 1 Pars. Notes, 279, 280; Gen. Stat., ch. 14, §3.

The judgment of the court below will be reversed, and cause remanded for further proceedings.

All the Justices concurring.  