Harrison v. Eagle Lumber & Supply Co.

• Decision Date: 10 December 1928
• Docket Number: 27394
• Citation: 152 Miss. 466,119 So. 203
• Parties: HARRISON v. EAGLE LUMBER & SUPPLY CO. [*]
• Court: Mississippi Supreme Court

119 So. 203

152 Miss. 466

HARRISON v. EAGLE LUMBER & SUPPLY CO. ^[*]

No. 27394

Supreme Court of Mississippi

December 10, 1928

Division A

1 TRIAL. Admission of note in evidence before introduction of evidence rendering it competent held not erroneous.

In action to recover on note, the admission of disputed note in evidence before execution thereof was established held not erroneous, in view of fact that evidence was subsequently introduced rendering note competent, since the order of proof rests in discretion of trial court.

2. APPEAL AND ERROR. Alleged error in admission of testimony of exhibits not objected to held without merit.

Alleged error in overruling objection to certain testimony and exhibits held without merit, where it appeared that there was no objection to introduction in evidence at the time.

3 EVIDENCE. Genuine writings are admissible for purpose of comparison with disputed writing.

Writings shown to be genuine are admissible in evidence for the purpose of comparison with the disputed writing, either by witnesses on the stand or by the jury without the intervention of witnesses.

HON. W A. WHIT, Judge.

APPEAL from circuit court of Harrison county., HON. W. A. WHITE, Judge.

Action by the Eagle Lumber & Supply Company against Mrs. Anna T. List Harrison. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

White & Scanlon and Buntin & McIntosh, for appellant.

The court erred in holding that the disputed signature of appellant on other instruments were competent evidence to prove disputed signature of appellant on note herein sued on. The note herein sued on was offered in evidence and introduced over the objection of appellant's counsel, when the only evidence with reference to its execution was that of witness G. R. O'Bryan, first witness for appellee, and his only testimony with regard to this note is: "I drew the note up and he (Benjamin Harrison) signed it before me. Mrs. Harrison was not along and he said he would carry it home and she would sign it. The next morning he brought it back signed." There is no further evidence in the record with reference to the execution of this note. This was introduced in evidence, over objection of appellant, and in face of the fact that appellant had filed a plea of non est factum, verified under oath, and with only the above evidence as proof of its execution. This was reversible error. 10 R. C. L. 1139; Patent v. Bank of LaFayette, 124 Ga. 965, 53 S.E. 664, 4 Ann. Cas. 639, 5 L. R. A. (N. S.) 592; Turrell v. Morgan, 7 Minn. 368; 82 Am. Dec. 101.

J. D. Arrington, for appellee.

The appellee assumed, and met the burden placed upon it, by the appellant's plea of non est factum. There was no subscribing witness to the execution of the note sued on. Consequently, the appellee could prove its execution as alleged in either or all of three modes of proof, to-wit: By admissions of the appellant, by proof of her handwriting, or by circumstantial evidence, See 8 C. J. 1001. All three modes of proof were successfully resorted to in the trial below.

A comparison of appellant's genuine signatures with that of the note sued on was properly instituted at the trial below. There were twenty specimens before the lower court, introduced both by appellant and appellee, but only eleven of those specimens are in the record and before the supreme court on this appeal. That consideration alone renders an affirmance of this case inevitable. Reynolds v. Wilkinson, 119 Miss. 590, 81 So. 278; Bunckley v. Jones, 79 Miss. 1, 29 So. 1000; Wilson v. Brown, 94 Miss. 608, 47 So. 545; Cartarhen v. Jones, 108 Miss. 704, 67 So. 177.

It is true that four of the twenty specimens offered and admitted in evidence below at the trial were later, when the appellant on the stand, denied as being not genuine signatures. The appellant's later denial of their genuineness is made much of by counsel for appellant; in short, it is almost their sole ground for demanding a reversal of this case. Their contention is easily disposed of, by a brief reference to the record of the testimony in the case. For instance, no specimen of appellant's signature was introduced over the objection of the appellant. The four specimens whose genuineness was denied by appellant later, and the introduction of which is complained of on this appeal, are the following: 1st. The plat of Hiawatha on the bay, introduced, for the purpose of comparing signatures, by Mr. Lee M. Russell. The appellant not only did not object to the introduction of the said plat in evidence, but actually and positively agreed that it would go into the evidence for the purpose of comparing the signatures. The appellant thus conceded the genuineness of the signature on the said plat. 2nd, 3rd, and 4th, are the exhibits "A," and "B," and "C" to Mr. Lee M. Russell's testimony. Likewise no objections were interposed to the introduction of those exhibits; and likewise, their genuineness was conceded. The time to complain of the admission of such testimony is when it is offered in evidence, at which time the trial judge call rule on the objections interposed, if such objections are not then made, error committed in admitting testimony is waived. Fox v. Baggett, 110 Miss. 506, 70 So. 581; Bates v. Strickland, 139 Miss. 636, 103 So. 432.

There was no error committed by the lower court in its admission of the note sued on in evidence. A jury was waived in this case by both parties. The order of introducing testimony is within the discretion of the trial court. Error cannot be predicated of this unless the discretion is abused. Myrick v. Wells, 52 Miss. 149. Even if its admission in evidence was irregular, it was not an abuse of discretion. Forgey v. Cambridge, Etc. Bank, 66 Ind. 123.

Appellant, upon appellee's offer of the note in evidence, made no specific objection. Quoting the objection: "Counsel for defendant objects as the testimony shows that Mrs. Harrison (appellant) did not sign it (the note) before him." It is obvious that this is, in law, no objection at all. There was no necessity, and no law requiring that the note be signed in Mr. O'Bryan's presence. In fact, the very objection itself admits that appellant signed the note; it merely denies that it was signed in the presence of the witness. Therefore, appellant's objection to the introduction of the note in evidence was tantamount to a general objection. And general objections are not considered on appeal. Bessler Movable Stairway v. Bank of Leakesville, 140, Miss. 537, 106 So. 445; Galtney v. Wood, 149 Miss. 56, 115 So. 117.

The law is settled, that "Objections to testimony must be seasonably interposed and made sufficiently specific to present, and not to obscure the question involved." Wagner v. Ellis, 85 Miss. 422, 27 So. 959. The party complaining on appeal is confined to those objections to the evidence that were made in the court below. Miss. Central R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; Alexander v. Eastland, 37 Miss. 554; Monk v. Horne, 38 Miss. 100, 75 Am. Dec. 94. In this state, as in most others, the law allows comparison of signatures. Coleman v. Adair, 75 Miss. 660, 23 So. 369; Wilson v. Beauchamp, 50 Miss. 24; Moye v. Herndon, 30 Miss. 110. And it is no longer necessary for the papers or documents to be otherwise relevant.

Ford, White, Graham & Gautier, also for appellee.

The only point in the case is whether or not the trial court had sufficient evidence before it to warrant a finding that the signature of Anna T. Harrison on the note sued on is her signature. There is no dispute about her owing the debt for which the note was given. There is no question now about the admissibility of admitted and proven signatures for the purpose of comparison with a disputed signature. 10 R. C. L. 994; University of Illinois v. Spalding, 62 L. R. A. 825; Stitzel v. Miller, 34 L. R. A. (N. S.) 1009; Coleman v. Adair, 75 Miss. 660.

OPINION

MCGOWEN, J.

The appellee, Eagle Lumber & Supply Company, filed its declaration in the county court of Harrison against appellant. The declaration contained four counts, three of which were abandoned, but upon the remaining count, based upon a promissory note for eight hundred sixty-two dollars and sixty-two cents, attached as an exhibit to the declaration, appellee is demanding judgment therefor. This case was tried before the county judge without a jury, and judgment was rendered in favor of appellee for the amount found to be due on the note, with interest and attorney's fees. Appellant appealed from this judgment to the circuit court, where the case was again affirmed; and from the judgment of the latter court, appellant appeals.

In the county court, appellant, Mrs. Harrison, filed, among other pleas, one of non est factum, sworn to; and the case was tried upon the issue of whether or not the note was executed by the appellant.

The evidence for the appellant is to the effect that early in the year 1926, Benjamin Harrison was living in the home of Mrs. Anna T. List, appellant; that while she was away on a visit, Harrison began extensive improvements on her residence, giving an order to the appellee, the Eagle Lumber & Supply Company, for material for such improvements. In April of that year, Mrs. List and Harrison were married. During the progress of the work of repairing and improving her dwelling, appellant signed dray tickets for the receipt of lumber delivered by appellee to her residence. She also took some part in the supervision and direction of the work done on her house. In October, Harrison, being pressed for payment of his account with appellee, asked the agent of the appellee to permit him and his wife to execute a note for the balance due, to which request the agent of the appellee assented....