Stutsman County Bank v. Jones

Robinson, J. In this case the judgment must be reversed, with •costs of both courts, and a new trial awarded. The record abounds ■with errors, and it gives a strong conviction to the writer of this opinion [540] that counsel for defendant has been trifling with the due administration of justice. Nearly two years ago this action was commenced to recover from the defendant about $6,800 and interest on five promissory notes. The first answer admits the making of the notes, and then goes on to state a lot of prejudicial matter which was neither a-defense nor a counterclaim. There is a second and a third answer, in which the making of the notes is denied, but each answer admits an indebtedness to about the amount of the notes, and then states a mass of prejudicial matter which was neither a defense nor a counterclaim. And at the close of the trial, after evidence had been offered to sustain the prejudicial matter called a counterclaim, it was dismissed on motion of counsel for the defendant. It is tx*ue counsel for defendant claims the first answer “was hurriedly drawn by counsel and hurriedly signed by defendant, who lenew not the contents of the answer amd who had not read the complaint, andf who did not know the description of the notes in the complaint.” It is said: “He had informed counsel that there was an unpaid balance-on the notes he had given the bank for the sum of $6,800, but that he had many effects, and counsel, believing the plaintiff bank to have set out the notes actually given by William Jones,, hurriedly drew the answer, and William Jones signed it to catch his train home.” (Brief, page 3.) The complaint on the five promissory notes is short. It can be read understanding^ in five minutes, and it is duly verified. There should have been no such haste and rush as to require the defendant to sign and to verify an answer when he “lenew not the contents of the answer and. had not read the complaint On the trial there was a great conflict of testimony, and doubtless some reckless swearing as to whether or not defendant signed the notes. For the purpose of disproving the signatures on the five promissory notes by comparing the same with signatures on other documents not in the case, the defendant put in evidence numerous checks and documents, with evidence to show that the same bore the genuine signature of Jones. Objections were duly made that every such document presented a new issue on the genuineness of the signature to each particular document. On this point there are perhaps one hundred errors occurring and duly assigned, when one such error should have been quite sufficient. [541] There are three ways of proving the signature to an instrument: The first is by the persons who were present and saw it signed, the second is by persons who have gradually become acquainted with the signature and know it just the same as one man knows another, the third is by experts who may give their opinion by comparing the signature in question with signatures confessedly genuine, and not made for the purpose of comparison. The issue was only on the genuineness of defendant’s signature to the notes, and the case should not have been prejudiced and lumbered with any matter not material to that issue. As it is manifest there has not been a fair trial, a new trial is granted, and it is by this court -ordered and adjudged that the judgment herein be reversed, with costs ■of both courts. And it is ordered within fifteen days after the remittitur is filed, the plaintiff may elect to amend his complaint so as to state a cause of action based on the consideration for which the notes were given, as well as a cause of action on the notes, because if the defendant was owing $6,800, as alleged in the answer, it was not paid -or discharged by the giving of void or counterfeit notes. And if the complaint be amended, the defendant must answer the same within fifteen days. Grace, J. I dissent. Christianson, J. I concur in the result only.