CITIZENS'BANK & TRUST CO. OF MIDDLESBORO, KY. v. Allen

• Decision Date: 19 September 1930
• Docket Number: No. 3023.,3023.
• Citation: 43 F.2d 549
• Parties: CITIZENS' BANK & TRUST CO. OF MIDDLESBORO, KY., v. ALLEN.
• Court: U.S. Court of Appeals — Fourth Circuit

43 F.2d 549 (1930)

CITIZENS' BANK & TRUST CO. OF MIDDLESBORO, KY., v. ALLEN.

No. 3023.

Circuit Court of Appeals, Fourth Circuit.

September 19, 1930.

B. H. Sewell, of Jonesville, Va. and E. M. Fulton, of Wise, Va., for appellant.

S. H. Sutherland, of Clintwood, Va. (W. L. Davidson, of Jonesville, Va., Pennington & Pennington, of Pennington Gap, Va., and S. H. & George C. Sutherland, of Clintwood, Va., on the brief), for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and GRONER, District Judge.

GRONER, District Judge.

Citizens' Bank & Trust Company brought an action against W. P. Allen and Mary Ely Allen, individually, and as partners trading under the name of Glen-Allen Stock Farm, for the amount of two certain promissory negotiable notes — one dated June 30, 1925, for $10,600, payable six months after date; the other for $2,517.17 dated August 31, 1925, payable four months after date, each purporting to be signed by Glen-Allen Stock Farm, W. P. Allen, and Mary Ely Allen. It developed during the trial that Glen-Allen Stock Farm was merely a trade-name under which W. P. Allen did business, and it was dropped from the case. Mary Ely Allen filed a verified plea denying that she had executed either of the two notes, or authorized any one to sign them for her, or in her behalf. The case was tried on this plea. The jury rendered its verdict against W. P. Allen and in favor of Mary Ely Allen. The bank moved the court to set aside the verdict as to Mary Ely Allen, and W. P. Allen moved the court to set it aside as to himself. The court overruled the motion as to Mary Ely Allen, and rendered final judgment in her favor. The questions we are called on to pass upon involve exceptions taken by the bank to sundry rulings of the court on the admissibility of evidence, as well as to the refusal of the court to charge as asked by the bank, and to particular parts of the charge as given.

At the outset the bank offered to introduce in evidence for the purpose of comparison a number of notes with signatures similar to the two notes in suit, avowing that it would show, if permitted, that the name "Mary Ely Allen" thereon was in the same handwriting as the same name on the notes sued on, and was not in the handwriting of W. P. Allen. On objection by counsel for Mrs. Allen, the trial judge heard the evidence offered by the bank in support of its tender, out of the presence of the jury, and decided that it failed to prove the genuineness of the signatures, purporting to be Mrs. Allen's on any of the notes, and therefore declined to admit them in evidence. The bank alleges this as error, but we think the trial court was right.

At common law it was not allowable to test the genuineness of disputed handwriting by comparing it with other handwriting of the parties, but by Act of February 26, 1913, 37 Stat. 683 (28 USCA § 638), the rule of the common law was changed, and it was enacted:

"In any proceeding before a court or judicial officer of the United States where the genuineness of the handwriting of any person may be involved, any admitted or proved handwriting of such person shall be competent evidence as a basis for comparison by witnesses, or by the jury, court, or officer conducting such proceeding, to prove or disprove such genuineness."

In this case the genuineness of the signatures on all the notes offered in proof was denied by Mrs. Allen. None of the writing, therefore, was admittedly hers, and the narrow question presented is whether the evidence to support the claim of the bank that the signatures were genuine, and therefore proper for use by the jury in comparison with the signatures on the notes in suit, was first for the court. We think the question should be answered affirmatively, and that the bank bore the burden of proving Mrs. Allen's signature on the notes to the satisfaction of the court as a prerequisite to the admission of such evidence before the jury. "If disputed signatures were admissible for the purpose of comparison, a collateral inquiry would be raised as to each standard; and the proof upon this inquiry would be comparison again, which would only lead to an endless series of issues, each more unsatisfactory than the first, and the case would thus be filled with issues aside from the real question before the jury." University v. Spalding, 71 N. H. 163, 51 A. 731, 734, 62 L. R. A. 817. And see Stillwell Mfg. Co. v. Phelps, 130 U. S. 520, 527, 9 S. Ct. 601, 603, 32 L. Ed. 1035, where it was held: "Whether a witness called to testify to any matter of opinion has such qualifications and knowledge as to make his testimony admissible is a preliminary question for the judge presiding at the trial." See also Gila Valley Ry. Co. v. Hall, 232 U. S. 94, 103, 34 S. Ct. 229, 58 L. Ed. 521, where it was held that the question of admissibility of evidence, whether of law or of fact, or law and fact, is first for determination of the court. Wigmore, vol. 5 (2d Ed.) § 2550. We also think the decision of the trial judge upon this fact is conclusive on appeal if it be fairly supported by the evidence. Stillwell v. Phelps, supra; Ry. v. Hall, supra. We have examined the evidence heard by the judge apart from the jury, and we think that there is wholly lacking proof of a clear and convincing character that the signatures on the proffered notes were in the handwriting of Mrs. Allen, or were ever made by her, and in view of this, we think the assignment is without merit.

The second question, raised by proper exception and assignment, is to the action of the trial court, after Mrs. Allen had written her name at the request and in the presence of the court and counsel rapidly a number of times with a number of different...