Neil v. J. I. Case & Co.

The opinion of the court was delivered by Horton, C. J.: On the 3d day of July, 1879, J. I. Case •& Co., a corporation organized under the laws of the state of Wisconsin, filed in the probate court of Republic .county a demand against the estate of John Neil, deceased, upon the following note: “MINERAL Point, Wis., Feb’y 7th, 1880. — Nine months after date, for value received, we promise to pay to the bearer, Francis Hambly, one hundred and forty-four dollars, with interest at 7 per cent., at W. F. Henry’s bank, Mineral Point. John Neil. David Neil.” Indorsed: “Francis Hambly; Oct. 27,1875, rec’d of John Neil one dollar.” The administratrix of the estate filed a written answer to" the claim, alleging that the note was false and forged, also setting up the five-years statute of limitations, and stating that [514] there had been no payment of money upon the-note within the lifetime of the intestate. The hearing upon the application to allow the demand was had August 28, 1879. The-court took the matter under advisement until September 1st, following, at which time judgment was rendered against the plaintiffs for costs. Thereupon an appeal was taken to the district court. No new pleadings were filed; nor was any application made therefor. The case was tried at the October term, 1879, of the court, without the intervention of a jury. The plaintiff, upon the trial, offered the instrument in writing, evidencing the alleged claim. The administratrix objected, on the ground of the absence of proof of the execution of the note and indorsement thereon. The court held the execution of the instrument and the indorsement were confessed, as there had been no denial thereof verified by the affidavit of any party. This raises the first question presented for our consideration: Does §108 of the code extend to cases like this appealed from the probate court to the district court,, where new pleadings are not filed, and the proceeding is heard upon the papers of the probate court? Said section reads: “In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority,, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney.” Now, §194, ch. 37, Comp. Laws 1879, relating to appeals-from the probate court, provides that upon the filing of the transcript and papers in the office of the clerk of the district court; the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without-regarding any error, defect or other imperfection in the proceedings of the probate court. The primary meaning of “anew” is “over again,” and to hear and try a case anew is to try the case “over again.” In the probate court a claim exceeding $50 must be established by competent evidence before it is allowed, and the court hears and determines the demand without any formal pleadings. When the appeal is [515] perfected in the district court, the court is possessed of the cause, and hears and determines the same anew. These provisions seem to give each party in the district court the right to prove any demand or defense which might have been proved in the probate court upon the papers filed. In this light, §108 has no application to appeals of this character where the parties do not file new pleadings. Clearly, a failure to deny under oath the execution of a written instrument set up as a demand in the probate court, does not dispense with the proof of its execution, and if the district court takes the case, and proceeds with it anew upon the appeal, the like practice ought to prevail there. In justice, § 108 ought not to extend to the representative of a deceased party in proceedings to establish demands upon written instruments in the probate court, and if new pleadings are not filed in the district court, the same rule should follow. The court therefore erred in receiving the instrument without due proof of its execution and the indorsement thereon. The decisions upon appeals from justices of the peace, under §124, ch. 81, Gen. Stat. 1868, are not applicable here, as that section specifically prescribes that on appeal to the district court, the parties are to proceed in all respects in the same manner as though the action had been originally instituted there. When the written instrument was presented in evidence it appeared from the face thereof that the rate of interest had been changed either from 7 to 10 or from 10 to 7 per cent., and the administratrix objected to the reception of the writing in evidence until such apparent alteration had been explained. The court overruled the objection, and held that the burden of proof was upon the defendant to show that the alteration was made after its execution. Counsel challenge this rule, and insist that the weight of authority is: If, on the production of a written instrument it appears to have been altered, it is incumbent- on the party offering it in evidence to explain this appearance. This is a vexed question, and the books are full of diverse decisions. Four different rules are generally stated: First, That an alteration apparent [516] on the face of the writing raises no presumption either way, but the question is for the jury; second, that it raises a presumption against the writing, and requires therefore some explanation to render it admissible; third, that it raises such a presumption when it is suspicious, otherwise not; fourth, that it is presumed, in the absence of explanation, to have been made before delivery, and therefore requires no explanation in the first instance." It is impossible to fix a cast-iron rule to control in all cases; but certainly the second rule, and the one contended for by plaintiff' in error, is not the true one. Clearly, in ordinary cases the alteration ought not to raise a presumption against the instrument, because the law never presumes wrong. The question as to the time of the alteration is, in the last instance, one for the jury. It is, like any other fact in the case, to be settled by the trier or triers of the facts. Generally, the instrument should be given in evidence, and in a jury case should go to the jury, upon ordinary proof of its execution, leaving the parties to such explanatory evidence of the alteration as they may choose to offer. If there is neither intrinsic •nor extrinsic evidence as to when the alteration was made, it is to be presumed, if any presumption is said to exist, that the alteration was made before, or at the time of the execution of the instrument. Perhaps there might be cases when the alteration is attended with such manifest circumstances of suspicion that the court might refuse to allow the instrument to go before the jury until some explanation; but this case is not of that character. (National Bank v. Franklin, 20 Kas. 264; Stoner v. Ellis, 6 Ind. 161; Paramour v. Linsey, 63 Mo. 63; White v. Hass, 32 Ala. 470. See also Hunt v. Gray, 35 N. J. L. 227; Hayden v. Goodnow, 39 Conn. 164; Davis v. Jenney, 1 Metc. 221.) Many of the authorities conflicting with these views, upon examination will .be found to have been based upon principles applicable to the alteration of written deeds only, and seem to have been founded upon the solemn character of sealed instruments as evidence. As the deed was the only evi [517] dence of a contract under seal, and could not be contradicted, it was highly important that it should declare the true intent of the parties, and that it should speak an unvarying and unequivocal language; therefore it was deemed necessary to protect it from every possibility of alteration; hence the. reason of many of the decisions holding every alteration as raising a presumption against the instrument. (Henry Pigot’s Case, 11 Co. 27.) On account of the admission of the note without sufficient proof of its execution, the judgment of the district court must be reversed, and the case remanded. All the Justices concurring.