Commonwealth, for Use and Benefit of Eversole v. West

• Decision Date: 13 October 1936
• Citation: 265 Ky. 550,97 S.W.2d 405
• Parties: COMMONWEALTH, for Use and Benefit of EVERSOLE, v. WEST et al.
• Court: Kentucky Court of Appeals

97 S.W.2d 405

265 Ky. 550

COMMONWEALTH, for Use and Benefit of EVERSOLE, v. WEST et al.

Court of Appeals of Kentucky

October 13, 1936

Appeal from Circuit Court, Whitley County.

Action by the Commonwealth of Kentucky, for the use and benefit of E. G. Eversole, against Mart West and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Homer C. Clay and A. H. Eversole, both of London, for appellant.

T. E Mahan and Tye, Siler, Gillis & Siler, all of Williamsburg for appellees.

CREAL Commissioner.

By this action, E. G. Eversole is seeking to recover treble damages in the sum of $723.75, growing out of alleged false returns of the sheriff by one of his deputies on executions which issued on a number of judgments against the Whitley Grocery Company.

The opinion on a former appeal reversing a judgment in favor of the defendants will be found in 261 Ky. 204, 87 S.W.2d 385 387. For a full statement of the facts and circumstances out of which the litigation grew, reference is made to that opinion. However, we might add that the contention of Eversole is that he did not sign or authorize his name to be signed to replevin bonds in satisfaction of the judgments against the Whitley Grocery Company as was shown by the return on the executions. As will appear from the opinion the judgment on the former appeal was reversed because the deputy sheriff who made the return on the execution was permitted to testify to statements made by Mr. Watkins, manager of the Grocery Company, concerning the alleged signature of Eversole on the replevin bonds and because the instruction authorized the jury to find for defendants, if they believed from the evidence that Eversole "authorized another to sign his name" to the bonds; there being no evidence of such authorization.

On second trial there was another verdict and judgment for the defendants, and Eversole is again appealing. Mr. Eversole stated positively that he did not sign the replevin bonds. On cross-examination he was asked to sign his name twice on a piece of paper and admitted that these signatures were very similar to the signature on the bonds. These signatures and the bonds were filed in evidence. At the time no objection was made to the introduction of the signatures of Eversole, or to the comparison of them with the signatures on the bonds; but at the close of all the evidence, his counsel made a motion to "Withdraw from the jury the signatures of E. G. Eversole written here in open court, on the ground that it is not competent."

The court overruled the motion and as a first ground for reversal it is urged that this was error, and section 1649, Kentucky Statutes, and section 604 of the Civil Code of Practice are cited as supporting such contention. The statute in question provides in effect that upon dispute as to the genuineness of the handwriting of a person in an action, prosecution, or proceeding, civil or criminal, other handwriting of such person not in the case for any other purpose may be introduced for the purpose of comparison by witnesses with the writing in dispute, providing, however, among other things, that the genuineness of such...