Gilmore v. Swisher

• Court: Kansas Supreme Court
• Writing for the Court: ALLEN, J.
• Citation: Gilmore v. Swisher, 59 Kan. 172, 52 P. 426 (Kan. 1898)
• Decision Date: 05 March 1898
• Docket Number: 10522
• Parties: T. M. GILMORE v. H. C. SWISHER et al

52 P. 426

59 Kan. 172

T. M. GILMORE v. H. C. SWISHER et al

No. 10522

Supreme Court of Kansas

March 5, 1898

Decided January, 1898.

Error from Osage District Court. William Thomson, Judge.

Judgment reversed and cause remanded.

P. E Gregory, Pleasant & Pleasant, and Robert C. Heizer, for plaintiff in error.

Tufts & Crowell, for defendants in error.

OPINION

ALLEN, J.

The defendant, H. C. Swisher, as sheriff of Osage County attached a stock of lumber in Overbrook, under an order of attachment issued in an action brought by William Carlisle & Co. against Gilmore & Britte. The property was afterward sold by the sheriff to satisfy judgments rendered in favor of Carlisle & Co. against Gilmore & Britte. The firm of Gilmore & Britte was composed of C. M. Gilmore, a son of the plaintiff, and W. A. Britte, a son-in-law. T. M. Gilmore brought this action against the sheriff and his bondsmen, claiming that he was in the possession of the property attached at the time of the levy, by virtue of a chattel mortgage executed to him by Gilmore & Britte to secure the payment of the sum of $ 3226.90. He alleged a wrongful taking and conversion of the property by the sheriff under the attachment, and asked judgment for the value of it. The defendants answered, admitting that Swisher was sheriff of Osage County and that the other defendants were his bondsmen, and admitting the levy of the attachment, but denying that the plaintiff was the owner of, or had any lien on the attached property. The answer charged a conspiracy by the plaintiff and the defendants in the attachment suit to defraud the creditors of Gilmore & Britte, and that the mortgage under which the plaintiff claimed was without consideration and fraudulent. The case was tried to a jury, and resulted in a verdict for the defendants. The plaintiff brings the case here alleging numerous errors in the proceedings.

At the trial the defendants offered in evidence a property statement made to the R. G. Dun & Company Agency, which they claimed was made out and signed in the name of Gilmore & Britte, by W. A. Britte. Britte being called by them, testified that the signature to the statement was not his. The defendants then sought to prove by expert witnesses the genuineness of the signature, and for that purpose produced a large number of letters purporting to be signed by Gilmore & Britte, and used them as a basis of comparison by experts for the purpose of proving the genuineness of the signatures to the property statement. The signatures to these letters were not admitted to be genuine, and most of the proof with reference to their genuineness was that they were letters received by mail in the due course of business, and opinions of witnesses that they were genuine.

There is much diversity of opinion, as we remarked in Gaunt v. Harkness, 53 Kan. 405, 36 P. 739, as to rules relating to the proof of signatures by experts based on a comparison of writing. The most liberal rule requires that the writings used as a basis for comparison with the disputed signature shall be clearly proved to be genuine. Without attempting to declare a definite rule on the subject, we are of the opinion that, in a case like this, where the writing itself to which the disputed signature is affixed is merely evidence of a collateral fact, and is offered only for the purpose of proving fraud on the part of persons not parties to the action, the signatures used as a basis of comparison should be such as are confessedly genuine. In trying the question of the genuineness of the signatures to letters offered, the jury would be taken away from the main issue and have their attention directed to a collateral matter having no bearing whatever on the case in hand. The exhibits offered, thirty-five in number, are not claimed to have any relation to the issues in the case. It was error to allow experts to give their opinions as to the genuineness of the signature to the property statement merely from a comparison with the signatures to the letters.

It is contended also that there was error in the admission of the property statement itself. If this statement was in fact made by Gilmore & Britte, it was a circumstance to be considered by the jury in determining whether they were guilty of the fraud charged. Of course, in order to affect the plaintiff, it was necessary to connect him with the fraud by other proof.

It seems to be conceded that the plaintiff had furnished his son and son-in-law substantially the amount of money represented by the note and mortgage; but the defendants contend that whatever he had furnished them was by way of gift, and not as a loan, and that the...