Heathcock v. Brooke

Hart, J., (after stating the facts). .At the outset it may be stated that the court did not err in refusing to transfer the case to equity. In Weaver v. Arkansas National Bank, 73 Ark. 462, it was held that an answer to a suit on a note setting up the defenses of a want of consideration and a release presents purely legal defenses which are triable in law, and not in equity. It is next insisted that the court erred in overruling the defendant’s motion for a continuance. The motion set up that if Perry Jones was present he would testify that about the latter part of October, 1919, he saw a letter from the plaintiff addressed to the defendant in which plaintiff stated that if he could not ship the cows he would cancel the note in question. The motion further recites that if Dillard Lackey was present he would testify that he had heard the conversation between the plaintiff and the defendant as to the purpose in view and heard the former tell the latter that he simply wanted him to execute the note in question to enable him to make a showing to his partner and that he never expected to collect the note. The plaintiff stated that if the defendant would accomodate him by executing the note he would ship the carload of Jersey cows to him, and that he could make a profit from the sale of them to more than offset the amount of the note. There was no error in refusing to grant the motion for a continuance. There is no showing that the letter which Perry Jones would have testified about had been lost, and the letter itself would have been the best evidence as to its contents. As to the witness Dillard Lackey, there was no showing as to where he was or that there was any probability of obtaining his testimony in the future. Moreover, his testimony was merely cumulative, and for that reason the court did not abuse its discretion in refusing to grant the motion. Texarkana & Ft. Smith Ry. Co. v. Adcock, 149 Ark. 110, and Finley v. Clift, 164 Ark. 190. It is next insisted that the court erred in allowing the note sued on to be introduced in evidence without proof of its execution. A sufficient answer to this contention is that the defendant in his own testimony admitted that he signed the note sued on. Its execution was also testified to by the plaintiff, and by the person who wrote the note, and who was present when the defendant executed it. In the second place, the defendant did not file an affidavit denying the genuineness of his signature to the note, and for that reason the note was prima facie evidence of its execution. Crawford & Moses’ Dig., § 4114, and Gardner v. Hughes, 136 Ark. 332. The respective theories of the parties' to this lawsuit were fully and fairly covered by the instructions given to the jury. We find no reversible error in the record, and the judgment will be affirmed.