Withee v. Simon

Maeshaxl, J. Several errors were assigned and argued at considerable length in the brief of counsel for appellant, to each of which respondent’s counsel make reply, and in addition make a general claim that no proof was produced of the genuineness of the signature of respondent to any of the notes, and that the judgment is right on the undisputed evidence. There is no question but that the burden of proof was on plaintiff to prove that Simon became a party to the notes, as the issues were finally made up for trial. It is contended, however, on the part of appellant, that the answer as to the indorsed notes was not in compliance with sec. 4192, Stats. 1898, under which signed or executed written instruments jprinna faaie establish the genuineness, of the signature or execution in the absence of any specific denial by the person purporting to have executed or signed the same, of such, signature or execution, by his affidavit or pleading, duly verified; and that the signature of Simon as to such indorsed notes was not in issue till respondent was permitted to com [119] ply with suck statute by filing an affidavit on tbe trial. The ruling on the application for leave to file such affidavit is the first 'assignment of error called to our attention. It was clearly within the discretionary power of the court to allow the filing of the affidavit, saving the rights of plaintiff, however, from prejudice by reason of granting such favor. It is familiar to the profession that trial courts, under the statutes of this state and the established practice, have very broad power in such matters, and the exercise of it cannot be successfully called in question except for a clear abuse of judicial authority. Secs. 2830, 2831, Stats. 1898, clothe courts of record with express power, in furtherance of justice and on such terms as may be just, on the trial •or at any stage of the action, either before or after judgment, to allow a party to correct a mistake of any character, with some exceptions not necessary to be noted here, without terms, even that of a continuance, no affidavit or proof being presented or facts appearing showing injury to the adverse party. The genuineness of the signature of Simon to the last note being in issue, it is manifest that the changed situation did not require any other proof than that which was necessary on plaintiff’s part to meet the issue raised as to the last note. The complaint respecting the ruling putting appellant to his proof as to the genuineness of respondent’s signature to the first three notes being disposed of, if a claim made by respondent that appellant failed to produce any satisfactory evidence on the question of such genuineness as to ■any of the notes be sustained by the record, the consideration of any other question will be unnecessary. After a careful reading of all the evidence bearing on respondent’s alleged connection with the notes, we are unable to find where appellant produced any definite evidence on' the question, while Simon testified distinctly and positively ‘that he did not sign either note as maker or indorser,, [120] and that what purported to be his signature in every case was a forgery. That evidence was corroborated by five experts in handwriting, and other evidence. In fact the evidence is substantially all one way on the question, so that the motion which was made by respondent for a non-suit before the case was submitted to the jury should have been granted, and if the verdict had been rendered for the .appellant it would have been the plain duty of the court to have set it aside at once upon respondent’s application therefor. By the Court.— The judgment of the circuit court is-affirmed.