Holland v. Commercial Bank

• Citation: 22 Neb. 571,36 N.W. 113
• Parties: HOLLAND v. COMMERCIAL BANK.
• Decision Date: 05 January 1888
• Court: Supreme Court of Nebraska

22 Neb. 571

36 N.W. 113

HOLLAND

v.COMMERCIAL BANK.

Supreme Court of Nebraska.

January 5, 1888.

Syllabus by the Court.

The written instrument presented in evidence by the plaintiff at the trial in the court below, as containing the articles of incorporation of the plaintiff in said action, though certified by the secretary of state as a copy, contained intrinsic evidence of being the original articles, the signatures thereto of the corporators being proved as genuine. Held, admissible in evidence.

On the trial of the action, plaintiff's books of account were introduced in evidence, and it was shown that a greater number of the entries at specified dates were made by and in the handwriting of a clerk in plaintiff's employ, who was neither called nor subpœnaed to verify such entries, nor was his absence accounted for. Held error, and a new trial granted.

On the trial of a motion to discharge an order of attachment to a judge at chambers, there being evidence tending to prove the absconding of defendant with intent to defraud his creditors, and that he had left the county of his residence to avoid the service of summons, the same being grounds of attachment, as alleged in the affidavit for attachment, and the weight of evidence not being clearly against the finding and judgment of the judge on said motion, the same upheld.

Error to district court, Cass county; HAYWARD, Judge.

This action was commenced by the Commercial Bank of Weeping Water against Lawrence Holland and Tewksbury & Cooper, to recover the sum of $7,474.17, as follows: Balance upon a note of $4,000, amounting to $2,474.17; one note of $3,000, given by defendant, Holland, to Tewksbury & Cooper, and by them indorsed to plaintiff, $3,000; overdraft, $2,000. Trial and judgment for plaintiff. Defendant, Lawrence Holland, brings error.J. H. Haldeman and Charles O. Whedon, for plaintiff in error.

H. D. Travis and E. H. Wooley, for defendant in error.

COBB, J.

The first point upon which plaintiff in error claims a reversal of the judgment is, the alleged failure of the plaintiff in the court below to prove and establish its corporate existence on the trial, such corporate existence having been denied and put in issue by the answer. The paper purporting to contain the articles of incorporation, as it appears in the bill of exceptions, is evidently a copy, and not an original paper, and yet there is intrinsic evidence to be gathered from the bill of exceptions that the original paper was offered and admitted in evidence. It appears that at the commencement of the trial the plaintiff offered in evidence the records of the incorporation of the bank. “The defendant objects to the introduction of this paper, for the reason that there is no foundation laid for it, and it is therefore incompetent.” The offer was temporarily withdrawn. C. H. Parmele was then sworn as a witness for the plaintiff, and, upon his examination, testified to the genuineness of five of the signatures to the paper. J. M. Robinson was then introduced as a witness, also on the part of plaintiff, and, upon his examination, verified the remaining signatures. The plaintiff then renewed its offer of the records of the incorporation of the bank. The defendant objected “as no foundation laid, and incompetent.” The court overruled the objection. The paper, as it appears in the bill of exceptions as plaintiff's Exhibit A, is type-written, in the same type as the body of the bill of exceptions, as well in the body of the articles of incorporation as the signatures of the incorporators, the indorsement of its filing by the county clerk, two certificates of acknowledgment by notaries public, and a certificate by the secretary of state. In this latter certificate, the secretary of state certifies that the same is a true and perfect copy of the original articles of incorporation on file in his office. It is impossible to conceive that this is the identical piece of paper which was before the said witnesses, the signatures to which they swore to be in the “genuine handwriting” of the corporators, and which, upon evidence, was admitted by the court. The paper admitted was not objected to as a copy, and not as an original paper, and yet it cannot be denied that the language of the objection was broad enough to admit of a construction covering that point. If the paper, as now found in the bill of exeptions, is the identical piece of paper that was offered and given in evidence, the court erred in overruling defendant's objection to its admission. If, on the other hand, it was substituted in making up the bill of exceptions for the one actually given in evidence, without a stipulation or leave of the court, then it evidences a degree of carelessness in practice which ought not be indulged in. Further on in the bill of exceptions this circumstance is repeated. The defendant swears that certain deeds offered in evidence by him are in the handwriting of Mr. Wooley; that he saw him write them; yet the deeds appear in the bill of exceptions in the ordinary type-writing, evidently copies, but nowhere called copies. It turns out, however, that the question thus involved is not of great importance in the case. The action was founded in part upon a promissory note, executed and delivered to the plaintiff by its corporate name. In such case, it has been held unnecessary to prove the corporate existence of the bank in a suit by it on such note. And such is the law as stated in the last clause of section 144, c. 16, Comp. St. See, also, Cowan v. State, 35 N. W. Rep. 405, and cases there cited.

The second point of contention in the brief is upon the admission in evidenceof the cash-book of defendant bank. The evidence applicable to that matter is as follows:

J. M. Roberts, a witness on behalf of the plaintiff, being on his examination in chief, and having testified that he was the cashier of the plaintiff: “ Question. I will ask you what book this is. Answer. The ledger. Q. Is that account in your handwriting? A. Yes, sir. * * * Q. What book is that you have? A. Cash-book. Q. Is that your original-entry book? A. Yes, sir. Q. Please turn to it, on February 19, 1886, and state whether there appears on that book any entry in favor of, or against, Lawrence Holland. A. Yes, sir, both; $69.33 debit, and $150 credit. Q. Turn to the twentieth day of February, 1886; do you find any entry there for or against Lawrence Holland, the defendant? A. I find two entries against the defendant. Q. Is that your book of original entries? A. Yes, sir. Q. Does it show continuous transactions between you and the defendant and the bank and other parties? A. Yes, sir. Q. Was it kept by yourself? A. Yes, sir. Q. I wish you would read those entries. [The defendant objects, as no foundation laid, and immaterial. Overruled.] A. L. Holland, there is a debit of $100; L. F. Holland, there is a debit of $34.20. Q. Turn to the twenty-second of February, 1886. The plaintiff offers in evidence the line on this page 173, upon which appears the figures ‘373’ in red ink, being the second time such figures appear upon said page. State to the jury the amount. Court. It is against the defendant, is it? A. Yes, sir; it is $13.70. All we have been reading yet are debits.”

This examination was continued at great length without further objection. Witness was cross-examined by defendant, re-examined by plaintiff, and re-cross-examined by defendant. I quote: “ Question. Do you say that you kept the books there, that you have testified to here, yourself; that they are in your handwriting? Answer. Not clear up to date. Q. Up to the nineteenth of June were all the entries in your handwriting? A. No, sir. Q. In whose? A. Part of them in Mr. Smith's. Q. What part of them? A. I can't tell without looking. Q. Did you not testify, when the book was introduced, that the books were in your handwriting? A. I testified up to the eighteenth of February, and after that some time. Q. How long after that time? A. Somewhere in March; somewhere about the middle, I think. Q. And the others are not in your handwriting? A. Part are, and part are not. * * * Q. There are about two-thirds of them that are not in your handwriting? A. I can't say as to the amount. Q. What would be your best judgment? A. I usually call the checks over, and he writes them down. Q. About how many were in your handwriting? A. I can't say. Q. Were those in your handwriting entered upon the books in the first instance? A. Yes, sir. Q. Just look at those items, and state whether that is your handwriting on page 248, in red ink, 367 cash-book? A. No, sir; that is in Mr. Smith's. Q. Do you see entries there in your handwriting? A. That day Mr. Smith wrote up all. Q. And you do not know whether that is correct or not? A. I do.”

The plaintiff here rested its case. Defendant moved to strike out that portion of the book that is not in the handwriting of the witness, on the ground that there is no foundation laid. Overruled.

The provision of statute governing the introduction of books of account in evidence is as follows: “ First, the books must show a continuous dealing with persons generally, or several items of charges at different times against the other party in the same book; second, it must be shown by the party's oath, or otherwise, that they are his books of original entries; third, it must be shown, in like manner, that the charges were made at or near the time of the transaction...