Campbell v. Conner

• Decision Date: 21 January 1896
• Docket Number: 1,733
• Citation: 42 N.E. 688,15 Ind.App. 23
• Parties: CAMPBELL v. CONNER, ADMINISTRATOR
• Court: Indiana Appellate Court

42 N.E. 688

15 Ind.App. 23

CAMPBELL v. CONNER, ADMINISTRATOR

No. 1,733

Court of Appeals of Indiana

January 21, 1896

Reported at: 15 Ind.App. 23 at 27.

From the Fayette Circuit Court.

Judgment affirmed.

S Claypool and J. W. Claypool, for appellant.

D. W McKee, R. Conner, J. M. McIntosh and G. W. Pigman, for appellee.

OPINION

DAVIS, J.

The appellant filed a claim against said estate in the Union Circuit Court, founded on a note dated Dec. 21, 1882, payable in ten years with interest. The note called for $ 5,750.00. The venue was changed to the Fayette Circuit Court. The defense was that said Rinker did not execute the note and that there was no consideration for the note. The jury returned a verdict for appellee, on which judgment was rendered. The only error assigned in this court is the overruling of appellant's motion for a new trial. Counsel for appellant insist that the verdict of the jury is not sustained by sufficient evidence, and that it is contrary to law.

We have carefully read the record, and find the evidence conflicting. There is ample evidence fairly supporting the verdict of the jury, on every material point in issue, and therefore we will not reverse the judgment of the trial court on this ground. Haines v. Porch, 9 Ind.App. 413; Zimmerman v. Snyder, 6 Ind.App. 178; Miles v. DeWolf, 8 Ind.App. 153.

On the trial the appellant introduced witnesses who testified that they had seen Henry Rinker sign his name, and, without asking the witnesses whether they knew or were acquainted with his handwriting or signature, obtained answer from them that in their opinion the signature to the note was genuine.

The appellee then introduced witnesses who testified that they had seen Henry Rinker sign his name, and, without asking the witnesses whether they knew or were acquainted with his signature, obtained answer from them that in their opinion the signature to the note was not genuine.

Assuming the law to be that in such cases non-expert witnesses can only give their opinion on the question of the genuineness of the signature in question, when they have shown that they are acquainted with such signature, is the appellant in a position to invoke the rule?

"It has often been decided that a party calling out incompetent evidence may preclude himself from successfully objecting to evidence of like character introduced by his adversary. The rule on this subject is that evidence otherwise incompetent may be practically stripped of its objectionable character by the course pursued by the party who challenges its competency. If a party opens the door for the admission of incompetent evidence he is in no plight to complain that his adversary followed through the door thus opened." Perkins v. Hayward, 124 Ind. 445.

In this case the appellant has no just ground for complaint because of the introduction of the incompetent evidence mentioned.

In one instance there was no objection to the evidence, but the question arises on the motion to strike out. The rule is that when evidence is admitted without objection a subsequent motion to strike out comes too late. Chicago, etc., R. W. Co. v. Champion, 9 Ind.App. 510.

It was shown, on cross-examination of this witness, that his opinion was based in part on comparison with signatures to papers not before the court and not admitted to be genuine. The witness was not an expert. Comparisons by experts can only be made with papers admitted to be genuine. Merritt v Straw, 6 Ind.App. 360. The fact...