Clay v. Alderson's Admr.

• Decision Date: 28 April 1877
• Citation: 10 W.Va. 49
• Parties: Clay v. Alderson's Admr.
• Court: West Virginia Supreme Court

10 W.Va. 49

Clay

v.Alderson's Admr.

Supreme Court of Appeals of West Virginia.

Decided April 28, 1877.

brought an action of debt against R., administrator of A., to recover the amount of a bond made by A., and another to C, in the life time of A. During the progress of the trial the plaintiff, as rebutting evidence to evidence given to the jury by the defendant, offered to read to the jury a paper marked A., in these words: "Received of Thomas G. Clay, in lull of the rent of 22 J acres of land for the year I860, this 3d day of August, 1861.

J.Marcus Alderson." And for the purpose of proving the execution of said, receipt to the court, so that the same might be read to the jury, the plaintiff placed a witness on the stand, by whom he proved that the signature thereto attached was that of J M. Alderson, the defendant's intestate, and thereupon the defendant's counsel asked the witness who had written the body of the instrument without objection, and the witness replied that it was as he believed, in the handwriting of the plaintiff in the suit, and the court certified that it was then and there thus proved that the body of said receipt was in the handwriting of the plaintiff, and the plaintiff then declared that he admitted that the body of said receipt' was in his handwriting; but the defendant's counsel at once declared that the defendant did not design to prove or admit that the said receipt was in the handwriting of the plaintiff, and thereupon the said receipt was permitted to be read to the jury, and was so read; and then the plaintiff placed on the stand James Montgomery, by whom he proved that the witness had been teller in the Bank of Lewisburg lor ten years, and that he had been in the habit, as a part of his business, of comparing handwriting and signatures, and that his business had, in his opinion, made him more competent than ordinary persons to detect, by comparison of hands, a genuine from a simulated writing; and the defendant having read to the jury a paper marked B., in these words: "Received of J. Marcus Alderson, four hundred and ninety-six dollars, payment in full of all demands.

Oct. 15, 1860. Thomas G. Clay."

Teste: "Lewis Miller." And asked the witness to take the said paper A and compare the writing of the body thereof with the signature to said paper B., and state to the jury whether or not, in his opinion, the body of said paper A, and the signature to said paper B were written by the same person; to which question the defendant objected, and the objection was sustained, and the court refused to permit the witness to answer the said question. Held:

This was not error Clay v. Robinson, Admr., 7th W. Va. R., 348

' Supersedeas to a judgment of the circuit court of Greenbrier county, rendered on the 23d day of November, 1877, in an action of debt then pending in said court, wherein Thomas G. Clay was plaintiff, and Wallace Robinson, sheriff of Greenbrier county, and as such, administrator of Marcus Alderson, deceased, was defendant.

The supersedeas was granted upon the petition of the plaintiff below.

The case was once before in this court upon a supersedeas granted upon the petition of the defendant below.

In the opinion of Haymond, J., may be found a sufficient statement of the case.

The Hon. Homer A. Holt, Judge of the eighth judicial circuit, presided at the trial below.

Matthews & Matthews, for plaintiff, referred to 1 Green. Ev., §578; upon the subject of handwriting.

Samuel Price and J. W. Davis for defendant. Davis cited:

Brugh v. Shank, 5 Leigh, 598, Callaghan v. Kippers, 7 Leigh, 608, and Gillilan v. Ludington, 6 W. Va. 128, upon the subject of new trials.

Haymond, Judge:

This is an action of debt brought in the circuit court of Greenbrier county, by the plaintiff, against the defendant, in the year 1869. A final judgment was rendered in the cause in 1873, by the circuit court, in favor of the plaintiff against the defendant, for $686.25 debt, with interest from the 11th of June, 1873, till paid, and the costs of suit. This judgment was subsequently brought before this Court for review, by supersedeas, and this Court at the term thereof which commenced in January, 1874, reversed said judgment, set aside the verdict of the jury rendered in the cause, and remanded the cause to said circuit court for further proceedings therein, to be had according to law. Clay v. Robinson, admr., 7th W. Va. R., 348. Since the reversal of said judgment and at the November Term, 1874, of said circuit court, it appears that another trial of said cause was had, at which, the jury empanneled in the cause, found a verdict for the defendant, and the circuit court rendered a judgment therein in favor of the defendant against the plaintiff for the defendant's costs of suit, &c. To this last named judgment the plaintiff obtained a supersedeas from this court, and it is now to be determined whether the circuit court erred in its last named judgment.

The plaintiff has assigned, in his petition, the following as errors in the said judgment, for which he claims it should be reversed by this Court, viz:

1st. The court should have permitted the witness Montgomery to have stated whether, in his opinion, the body of the paper A and the signature to paper B were written by the same person.

Second. The court should have sustained the plaintiff's motion to exclude the depositions of the witnesses Hines, Gwinn, Ellis and Johnson.

Third. The court should have continued the case.

Fourth. The court should have set aside the verdict and granted a new trial.

The first error assigned is based on plaintiff's bill of exceptions No. 1. By this bill of exceptions it appears that on the trial of the cause the defendant, to maintain the issue on his part, introduced proof that there had been a settlement between John Marcus Alderson, the defendant's intestate, and the plaintiff, in the month of September, 1862, and that the plaintiff had on that occasion executed to said Alderson, his bond for about seventy dollars; and to rebut this proof, the plaintiff offered to introduce evidence to show that he had rented land of J. M. Alderson that belonged to R. D. Alderson, whose administrator the said J. M. Alderson was; that this renting took place in the years 1860-61 and 62, and that the land rented for about $70.00 per year, to the introduction of which evidence the defendant objected, and his objection was overruled, and the evidence given to the jury; and further to rebut said proof, the plaintiff offered to read to the jury a paper marked "A," in the words and figures following, to-wit:

Receipt." Received of Thomas G. Clay, in full of the rent of 221/2, acres of land for the year 1860, this 3d day of August, 1861.

J. Marcus Alderson." And for the purpose of proving the execution of said receipt to the court, so that the same might be read to the jury, the plaintiff placed a witness upon the stand, by whom he proved that the signature thereto attached was that of John Marcus Alderson, the defendant's intestate, and thereupon the defendant's counsel asked the witness who had written the body of the instrument, and the witness replied that it was, as he believed, in the handwriting of the plaintiff in this suit, and the court certifies that it was then and there thus proved that the body of said instrument was in the handwriting of said Clay; and then the plaintiff's counsel declared that he admitted that the body of the receipt was in the handwriting of the plaintiff, Clay; but the defendant's counsel at once declared that the defendant did not design to prove or admit that the said paper was in the handwriting of the plaintiff, Clay; and thereupon the said receipt was permitted to be read to the jury, and was so read; and then the plaintiff placed on the stand James Montgomery, by whom he proved that the witness had been teller in the Bank of Lewisburg for ten years, and that he had been in the habit, as a part of his business, of comparing handwriting and signatures, and that his business had, in his opinion, made him more competent than ordinary persons to detect, by comparison of hands, a genuine from a simulated writing; and the defendant having read to the jury a paper marked B, in the words and figures following, to-wit:

Receipt. Received of J. Marcus Alderson, four hundred and ninety-six dollars, payment in full of all demands.

Oct, 15th, 1860. Thomas G. Clay.

Teste: Lewis Miller. And asked witness to take the paper A and compare the handwriting of...