Dexter v. Powell

Opinion by W. D. Porter, J., This is an action by the holder of a negotiable promissory [165] note against the maker. The plaintiff filed with his statement a copy of the note, which was payable to Wingate Trade Exchange, or order, and was indorsed “ Wingate Trade Exchange, E. S. Andrews, Manager.” An affidavit of defense was filed, setting forth a defense upon the merits, but the execution of the paper by the maker and the indorser was not denied. At the trial the plaintiff offered the note in evidence, alleging the right to do so without proving the execution thereof, by force of Rule 1, paragraph 2 of the court below, which rule reads as follows: “ In actions founded upon deed, bond, note, bill or other instrument of writing for the payment of money, or the performance of stipulated duties, a copy of which shall have been filed with the narr. or statement, the execution of such paper or writing, including the handwriting of drawer, accepter or indorser thereon, shall be taken as admitted on the trial, unless the defendant, or some one in his behalf, shall deny the execution on oath, within the time prescribed for filing affidavits of defense.” The defendant objected, upon the ground that the note was not admissible under the rule, without first proving the indorsement, and, second, the authority of the indorser to make such indorsement. The learned court below sustained the objection, which action is now assigned for error. Every court is the best judge of its own rules, and its construction thereof will not be reversed unless manifestly erroneous and injurious: McLane v. Hoffman, 164 Pa. 491; Higgins Carpet Company v. Latimer, 165 Pa. 617. The rule in question tends to speed the final disposition of causes, and to dispense with the production of evidence tending to establish facts with regard to which the parties, in their affidavits, substantially agree. If the matter necessary to make out plaintiff’s case comes within the operation of this rule, he has a right to reply upon the enforcement of the rule, and it would be a hardship to require him to have present at the trial witnesses necessary to establish a fact which, under the rule, he has the legal right to assume to be admitted to be true. This being so, he prepares and produces his evidence with a view solely to the questions of fact which remain disputed. To have in attendance witnesses to prove the facts already conclusively established by the rule of court would simply be to unnecessarily increase costs. Did this rule of court require the admis [166] sion of this note in evidence without proof of the indorsement thereon ? If it clearly did, then the ruling of the learned court below was erroneous. The plaintiff could have had no notice that the rule would be construed in a manner contrary to its express provisions. Such a construction imposed upon him, in the midst of a trial, a burden of proof from which he was by the rule exempted. While the construction which a court puts upon its own rules is entitled to the highest respect, and is only to be reversed in case of clear error, it is always proper on appeal to consider the construction which the Supreme Court has put upon rules which speak in language almost identical, with regard to the same subject-matter. In Miller v. Weeks, 22 Pa. 89, a rule of court that, “In all actions brought in this court upon any deed, bond, bill, note or other instrument of writing, a copy of which shall have been filed within two weeks from the return day, to which the action is brought, it shall not be necessary for the plaintiff on the trial to prove the execution thereof; but the same shall be taken to be admitted, unless the defendant, by affidavit filed at or before the time of filing his plea, shall have denied that said note, etc., or other instrument of writing, was executed by him,” was held to embrace the indorsements upon the note, in an action by the holder against the maker. The rule with which we have to deal is much broader. It does not stop with declaring that the execution of such paper shall be taken as admitted, but goes further, and, by language which cannot be misunderstood, leaves nothing to mere construction. When the rule declares that the execution of the paper shall be taken as admitted, it means that the paper shall be received as duly executed, by one having authority so to do. The learned court below in formulating this rule, in order to make it'clear that the execution by the indorser, as well as by the maker, was to be brought within the operation of this rule, used these words: “ The execution of such paper, or writing, including the handwriting of drawer, accepter, or indorser thereon, shall be taken as admitted.” This was notice to all that the plaintiff in an action upon a promissoiy note or bill of exchange would not be required to produce evidence of the execution of the instrument by the maker, and its indorsement by the various parties through whose hands it might come into the possession of the holder. When a [167] plaintiff in an action on a negotiable note brought himself within the operation of this rule, and the defendant did not deny the execution of the paper, as required by the rule, this manifest result was reached: the plaintiff was entitled to read his note in evidence and his prima facie case was then made out. The action of the court below which is complained of was not a construction of the rule of court, but an abrogation of its plain terms. The jury had been sworn, and the plaintiff was injured by being suddenly called upon to prove facts which he had a right to consider as already determined in his favor. The first and second specifications of error are sustained. Judgment reversed and venire facias de novo awarded.