Wyles v. Berry

Opinion by JUDGE O’REAR Reversing. Appellee, sued as principal upon a bond for the payment of money loaned by order of the Harrison circuit court, pleaded non est factum to the obligation. Upon the trial the plaintiff offered to prove that appellee had filed an answer originally in the action upon the bond, pleading that he had signed it as surety only, whereas it appears to have been executed by him as principal. He was permitted, without objection, and before reply, to "withdraw” that answer, and to file another denying the execution of the paper. The trial court refused to require appellee to replace the withdrawn pleading with the files' of the suit, though he admitted he had it in his possession, and refused, too, to admit evidence as to its contents. Appellee should have been required to replace the paper among the files of the suit, and, if that could not be done, its contents should have been admitted: Even if a party is permitted, in the discretion of the court, to withdraw a pleading, it does not follow, and, indeed, it is not proper, that he should be permitted to take it off the files of the record without leaving a properly attested copy. The effect of the order permitting the withdrawal is merely to eliminate the pleading as a pleading tendering <an issue to be tried in the case. If it contains an admission of fact rele [380] vant to the trial, and if it is signed or sworn to by the party in whose behalf it was filed, such .admission may be proved on the trial against the party making it, as may be any other'admission of his against his interest. We are aware that in some jurisdictions, and in some instances in this State, pleadings are not required to be verified by the personal oath of the party, nor to be signed by him. In such cases, in the absence of showing that he authorized and knew of the making of the statement asserting a fact purporting to be within his personal knowledge, and afterward sought to be proved as an admission, it should not be allowed. But where he signs the pleading, and especially where he swears to the truth of its statements, we- perceive no reason why an admission of fact in it against his interest may not be proved by his adversary, as if made- under other circumstances. The weight of authority, as well as sound reason, seem to support this rule. Pope v. Allis, 115 U. S., 363, 6 Sup. Ct., 69, 29 L. Ed., 393; Delaware Co. v. Diebold, etc., 133 U. S., 473, 10 Sup. Ct., 399, 33 L. Ed., 674; Gibson v. Herriott, 55 Ark., 85, 17 S. W., 589, 29 Am. St. Rep., 17; Raridan v. Central Iowa Ry. Co., 69 Iowa, 527, 29 N. W., 599; Baltimore, etc., R. R. Co. v. Evarts, 112 Ind., 533, 14 N. E., 369; Daub v. Englebach, 109 Ill., 267; Peckham Iron Co. v. Harper, 41 Ohio St., 100; Fite v. Black, 92 Ga., 363, 17 S. E., 349; Blankman v. Vallejo, 15 Cal., 639. The affidavit of J. I. Blanton, offered to contradict or impeach his testimony, was properly rejected, as it was not conflicting with his statements on the trial. Evidence offered by appellant tending to show the financial worth of J. I. Blanton at the time the. money was loaned, who appears to have been the person for whom the money was actually borrowed, should have been permitted. Judgment reversed, and cause remanded for a new trial, under proceedings not inconsistent herewith.