Ballow v. Collins

• Decision Date: 09 February 1904
• Citation: 36 So. 712,139 Ala. 543
• Parties: BALLOW v. COLLINS ET AL.
• Court: Alabama Supreme Court

36 So. 712

139 Ala. 543

BALLOW v. COLLINS ET AL.

Supreme Court of Alabama

February 9, 1904

Appeal from Circuit Court, Marengo County; John C. Anderson, Judge.

Action by R. C. Ballow against J. T. Collins and another. From a judgment for defendants, plaintiff appeals. Reversed.

This was an action of trover brought by the appellant, R. C Ballow, against the appellees, James T. Collins, Sr., and Henderson Carter, and sought to recover damages for the alleged conversion of a bale of cotton. The cause was tried upon issue joined on the plea of the general issue. The plaintiff introduced in evidence a mortgage given to him by the defendant Henderson Carter on his crop raised in the year 1901, and it was shown that the bale of cotton alleged to have been converted was raised by said Carter on his plantation during the year 1901, and that said bale of cotton had been delivered to the defendant Collins by the defendant Carter, and that said Collins had refused to surrender the cotton to the plaintiff, or to deliver to the plaintiff the proceeds from the sale of said cotton. The defendant Collins claimed the right to the cotton under a mortgage executed to him by the defendant Carter, which was executed after the execution of the mortgage given by Carter to the plaintiff. This mortgage was executed by said Carter by his making his mark against his name, which was written for him. The plaintiff objected to the introduction in evidence of said mortgage, and duly excepted to the court's overruling his objection. After the mortgage was introduced in evidence, and upon the further testimony of the defendant Carter as to its execution, the plaintiff moved the court to exclude said mortgage from the evidence, and duly excepted to the court overruling his motion. The grounds of the plaintiff's objections to the introduction of said mortgage in evidence and also of the motion to exclude the same, and the facts pertaining to the ruling of the court, are sufficiently shown in the opinion. Upon the introduction of all the evidence the court requested the defendant to give the general affirmative charge in their behalf, and to the giving of this charge the plaintiff duly excepted. There were verdict and judgment for the defendants. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Miller & Herbert, for appellant.

McCLELLAN C.J.

To prove the execution of a writing, the signature of the maker must, of course, be proved. Where the maker cannot write his name to the paper, its execution is effected by his setting his mark against his name as written for him, and by the attestation of a witness who can and does write his name. When this is done, the signature of the maker is not merely his name thus written, with his mark set against it, but an essential and inherent part of his signature is the signature of the other person as a witness. It requires all of this to constitute the signature of such illiterate maker, and all of it must be proved before it can be said that the execution of the paper is proved. Code 1896, §§ 1, 2151. It is difficult to conceive how an illiterate person can testify to the signature of another person at all, but, assuming that to be possible, there is no pretense here of testimony on the part of the maker, Carter, to the effect...