Huston v. Ticknor & Co.

Mx\ Justice Paxson delivered the opinion of the court, January 3d 1882. This was a feigned issue. A number of assignments of error have been filed to the x-ulings of the learned judge below. The first criticisxn we have to make is to the form of the issue. It was fx’amed to try the single question, whether a paper postponing the lien of certain judgments held by the plaintiff to the lien of certain other jxxdgments held by the defendants, was the act and deed of the said plaintiff. The latter denied having executed such a paper, and the issue was accordingly framed to try this question of fact. In framing such an issue the party holding the affirmative should be made the plaintiff. This, howevei-, was not done. On the contraxy, the pax’ty denying the executioxx of tfie paper was made the plaintiff, and the parties asserting it were made defendants. No exception was taken to the fox’m of the issue,, and we would not, therefore, re-vex’se on that ground. But the consequences resulting from this error are so serious, and so interwoven with the entire trial, that our duty requires us to consider them. Had the parties been reversed, the ox’derly mode of trial would have been for the plaintiff to have called the subscribing witnesses, and after having, in the usual manner’, proved the exe'cution of the paper’, offered it in evidence. This would have made out a prima facie case, and it woxxld therx have been for the defendants, who denied its execution, to have sustained suelx denial by testimony. What actually occunod upon the trial was this: After the plaintiff’s case was opened sire went upon the stand and positively denied having executed the paper’, or lxavixxg authorized any one to execute it for hex’. At this point the plaintiff rested her case. The defendants then offered the paper in dispute in evidence. [237] Neither the subscribing witnesses, nor any witnesses, were called to prove plaintiff’s signature. The paper was admitted by the court against the objection of plaintiff. The result was tlie admission of a paper which had not been proved, and the execution of which liad been dented by the plaintiff, who, up to this point, was the only witness who had been sworn in the cause. This error was cured in part by the defendants’ subsequently calling one of the subscribing witnesses, and it is referred to now chiefly as showing the incongruous results flowing from the original error in the form of the issue. This will further appear by reference to the third assignment of error. In reply to the objection of plaintiff’s counsel, that the signature to the paper had not been proved, the court replied: “ They do not have to. The very matter in dispute; you introduced it in evidence the first thing. It is in evidence, practically and substantially, and you may read it if you like. You could not go a step without it. This verdict would have to be for the defendants if that paper was not in evidence. It does not need to be proven. It is in dispute.” We are entirely unable to see liow a paper that is in dispute requires no proof, nor how a refusal of the court to admit the paper without proof would entitle the defendants to a verdict. In Harrington v. Gable, 31 P. F. S. 410, which was a feigned issue to try the execution of a judgment note, the plaintiff offered the note in evidence without proof of its execution. The court below rejected it, which ruling was affirmed by tins court, Woodward, L, saying: “The offer of the note and of the record of the judgment, at the opening of the cause, was premature, and was properly rejected.” It is true, in the case cited, the issue was properly framed, the plaintiff being the party holding the affirmation of the issue. This, however, we think, is not material, for reasons which will be stated hereafter. The most serious result, however, consequent upon the form of the issue, was the shifting of the burden of proof. This is a radical error, and underlies the entire case. The learned court instructed the jury : “ Gentlemen: The plaintiff in this ease is O. A. Huston, and she alleges it is not her signature, and tlie burden of proof is upon her to show that it is not her signature. She is the actor in this suit, and the burden of proof is upon her.” The learned judge was evidently misled by the form of the issue. This leads us to consider the question, how far the plaintiff, having submitted to be placed in the front of the battle, without an exception, can now take advantage of the ruling of the court upon this point. The general rule of law is, that the burden of proof lies upon tlie party, who substantially asserts tlie affirmative of the [238] issue. “ And regard is had in this matter to the substance and effect of the issue, rather than to the form of itGreenleaf on Evidence, § Yé. The narr. in this case is in the usual form of a wager. It is true C. A. Huston is the actor, and this makes the whole thing excessively awkward. Regarding, however, the substance, we find on her part nothing but a denial of what the defendants had previously asserted, to wit, that the paper in question was her act and deed. She was, therefore, merely asserting a negative, and under no rule of law, was the burden of proof upon her. The order of court or arrangement by which she was made the jdaintiff, might perhaps control the order of proceedings, but it could not abrogate well-established rules of evidence and deprive her of the legal presumptions to which she was entitled. The 9th and 15th assignments are sustained. There was also error in the answer of the court to the plaintiff’s fourth point. The said point is as follows: — “ That if the jury believe the testimony of Ticknor and Litchfield, that W. T. McMurtry signed a paper called a postponement in their office, saying that he had seen Miss Huston sign the same, Miss Huston not being present, he is not a subscribing witness to the paper, and proof of the genuineness of his signature is not evidence of the execution of said paper by Miss Huston,” which point the learned judge answered by saying, “ McMurtry is a subscribing witness, if he signed the paper in question, and proof of his signature is a part of the common law proof of the execution of the paper.” The paper referred to bore upon its face the name of ~W. T. McMurtry as a subscribing witness. Prima facie, therefore, he was such. The defendants, however, did not call him to sustain the paper. It was shown by the testimony of each of the defendants, that McMurtry brought them the paper purporting to be signed by Miss Huston, and by D. F. Booth as a subscribing witness; that he stated he had seen them both sign, and then, in the absence of Miss Huston, appended his own name as a subscribing witness, remarking at the time that “two witnesses were better than one.” The plaintiff in rebuttal called Mr. McMurtry, who flatly denied his signature to the paper, after which the defendants called several witnesses to prove that it was his signature. It is plain from the defendants’ own showing that McMurtry was not a subscribing witness. He did not sign as such in the presence of Miss Huston, nor at her request. The familiar rule upon this subject is accurately stated by Mr. Greenleaf in his work on Evidence, at § 569: “ A subscribing witness is one who was present, when the instrument was executed, and who at that time, at the request or with the assent of the party, [239] subscribed his name to it, as a witness of the execution. If his name is signed, not by himself, but by the party, it is no attestation. Neither is it such, if, though present at the execution, he did not subscribe the instrument at that time, but did it after-wards and without request, or by the fraudulent procurement of the other party. But it is not necessary that he should have actually seen the party sign, nor have been present at the very moment of signing; for, if he is called in immediately after-wards, and the party acknowledges his signature to the witness, and requests him to attest it, this will be deemed part of the transaction, and, therefore, a sufficient attestation.” The rule is laid down in a similar manner in Bouvier’s Law Dictionary, vol. 2, p. 555. In view of the foregoing state of facts, it was error for the court to instruct the jury as a matter of law that McMurtry was a subscribing witness' to the paper, and that proof of his signature was proof of its execution. It was the more hurtful, as the effect of such proof, under the ruling of the court, was to contradict the plaintiff’s statement that the signature was not hers. This disposes of all the serious errors in the case. Complaint is made of the charge, in several of the assignments, particularly of inaccuracies as to the statement of the facts. As it is manifest, that only a portion of the testimony is printed, we will not attempt a review of those portions of the charge, feeling confident if any such errors exist, the learned judge will correct them upon another trial. Judgment reversed, and venire facias de novo awarded.