(dissenting). This is an action to recover on a promiissor note. The facts as described by the evidence are as follows: Defendant Davis lost the aggregate sum of $331 in a poker game, for which he issued three checks, one to each of his three creditors for the various amounts due each. Said checks were drawn on the First National Bank of Winner, and, when presented, were refused payment on account of a lack of funds in Davis’ account. Defendant Day, one of the parties present at said poker game, later took up these three checks, and then requested defendant Davis to execute and deliver to him a note (Exhibit 4) in the amount of $531. The consideration for the execution and delivery of said note was the return of the three checks, originally given to pay the gambling debts of said D'avis. Later defendant Davis executed and delivered to defendant Day ,his note (Exhibit A) in the sum of $551. The consideration for the execution and delivery of this second note was the return of the first note (Exhibit 4). Later defendant Read indorsed this second note, and same was sold to plaintiff for the sum of $500. Plaintiff brought this action to recover upon said note (Exhibit A), and the lower court entered judgment for the plaintiff. De*557fendant then moved for a new trial, which motion the lower court denied, and it is from this judgment and order denying a newi trial that this appeal is taken. Defendant Day does not appear as a party to this appeal.
Plaintiff contends that he is a holder in due course of the note in suit. Defendant contends that, because the initial transaction, which resulted in the execution of the note now in suit, was to pay a gambling debt, this note is absolutely void under the provisions of section 3929, R. C. 1919.
In the first nine assignments of error, appellants argue the question of whether or not the note in dispute is void, basing their argument on section 3929, R. C. 1919. There are no disputed facts in the evidence as to the origin of the note in suit. It has been clearly proven that this note was the result of three debts contracted in a poker game, and the above-cited section must be held to be controlling. There can 'be no such thing as a holder in due course of a note which was void from its inception.
Cases similar to the one at bar have been before the Supreme Courts of Iowa, Kentucky, Colorado, and Tennessee; all of these states having gambling statutes similar to ours. In Traders’ Bank v. Aslop, 19 N. W. 863, 64 Iowa 97, it was said that an instrument or note given for a gambling debt was an absolute nullity, and, under the statute of Iowa, must be held to be void even in the hands of innocent purchasers. In Alexander v. Hazelrigg, 97 S. W. 353, 123 Ky. 677, it was said, “under Ky. St. 1903, § 1955; declaring all gambling contracts void,” the provisions of the Negotiable Instrument Act, that “a holder in due course of a negotiable instrument holds it 'free from defenses available to prior parties among themselves, does not authorize one holding in due course a note given for a gambling debt to enforce such note.” In Snoddy v. American National Bank, 13 S. W. 127, 88 Tenn. 573, 7 L. R. A. 703, 17 Am. St. Rep. 918, the Supreme Court of Tennessee said:
“A negotiable note is not valid, even in the hands of a bona fide holder, where it grows out of a wager contract, which is made a crime by statute, * * * although the statute does not expressly declare that such note shall be void in the hands of innocent ■holders.”
In Western National Bank of Pueblo v. State Bank of Rocky Ford, 70 P. 439, 18 Colo. App. 128, it was said that:
*558“ ‘Even in the hands of bona fide purchasers, negotiable paper, founded in whole or in part upon a gambling or gaming consideration, within the meaning of this section, is utterly void.’ If a negotiable instrument is void because of a gambling consideration, so must also be an assignment or indorsement, because it is a contract indisputably, and hence comes within the express language of the statute.”
The note in dispute was void in its inception and the fact that it was negotiated cannot be held to make it valid. Assignment No. io has to- do with the question of whether or not plaintiff was a purchaser in good faith, and becomes immaterial. Assignment No. ii predicates error in denying a motion for a new trial. I think that a new trial was not necessary even though the verdict of the -court was 'based on erroneous findings of fact and-conclusions of law. There are no disputed questions of fact, and the evidence is sufficient upon which to- base a reversal of the lower court’s -decision without the necessity of a new trial.
I think the case should be dismissed as to defendants D-avis and Read, with instructions to enter judgment accordingly.