Cawley v. Bohan

Opinion, Me. Justice Paxson : The note upon which this suit was brought contained a waiver by the defendant of the right of appeal. He appeared before the justice upon the return day of the summons and denied his signature. He was not sworn, nor did he file any affidavit containing such denial. It was sufficient, however, to compel the plaintiff to obtain a continuance, for the purpose of proving the signature. This he did at the adjourned hearing, the defendant not appearing, and the justice gave a judgment for the plaintiff. It thus appears from the transcript of the justice that the defendant did not at any time make oath that his signature was a forgery, nor did he call a witness for that purpose. He has not raised in any legal way the question of the genuineness of his signature. His unsupported, naked assertion, not under oath, is not sufficient. When the opportunity to sustain his assertion was afforded he declined it, or at least neglected it. He does not account in any manner for his conduct in tins respect. In a legal sense it cannot be said that there was a disputed question of fact about the signature. If such disputed fact had been fairly raised, we would have had a different question before us. As it stands, it looks like a device to gain time, and an appeal, to which the defendant was not entitled. W e are of opinion the court below was right in striking off the appeal. If the note was signed by the defendant he had no appeal, because he had waived it; if a forgery, it was his duty to have raised that question in a legal way before he could claim the right of appeal. This he could not do by his mere assertion not under oath. Judgment affirmed.