Holmes Bros. v. McCall

• Decision Date: 09 April 1917
• Docket Number: 19048
• Citation: 114 Miss. 57,74 So. 786
• Court: Mississippi Supreme Court
• Parties: HOLMES BROS. v. MCCALL

74 So. 786

114 Miss. 57

HOLMES BROS. v. MCCALL

No. 19048

Supreme Court of Mississippi

April 9, 1917

Division A

APPEAL from the circuit court of Sunflower county, HON. FRANK EVERETT, Judge.

Suit by Holmes Bros. against Neal McCall. From a judgment for defendant, plaintiff appeals.

The special plea referred to in the opinion is as follows:

"Comes the defendant, Neal McCall, by his attorney, and for further plea in this behalf says that the plaintiff ought not to have and maintain his aforesaid action, because he says that he did not execute or deliver the note herein sued on, and that his signature was procured to said note by false and fraudulent representation then and there made to him at the time of procuring his signature to said note; that said false and fraudulent representations were made to him by and through an agent representing the plaintiff herein, Holmes Bros., and that said false and fraudulent representations consisted in said agent of Holmes Bros., the plaintiff herein, representing to said defendant that his signature was being placed to said note sued on as a witness and not as a principal. And this the defendant is ready to verify. S.D NEILL, Attorney for defendant.

"State of Mississippi, County of Sunflower. Personally appeared before me, the undersigned clerk of the circuit court in and for the county and state aforesaid, Neal McCall, the defendant in the above-styled cause, who, being first duly sworn by me, states on oath that the matters and things contained in the above and foregoing plea are true and correct as therein stated. NEAL MCCALL.

"Sworn to and subscribed before me, this the 5th day of October 1915. J. R. KEY, Circuit Clerk."

Judgment reversed, and cause remanded.

L. M Holmes, for appellant.

We submit that the trial judge committed a most fatal error in sustaining the appellee's objection to the introduction of the note sued upon and shown by record page 35. The plea of the defendant, now appellee, as shown by record, page 31, does not deny his signature to the note sued on, but admits that he signed same, but alleges that his signature to same was procured to same by fraud, in that it was represented to him that he was to sign as a witness, which plea falls flat on its face when you examine the notes, as his name is the only one appearing on it and there was no signature to witness. The plea did not require plaintiffs, now appellants, to prove the signature, as it was admitted in the plea that the said note was signed by him and the note was admissible in evidence and plaintiffs under the law, would have been entitled to peremptory instructions, unless the allegations set out in the plea were established by evidence and the burden was on appellee to establish his defense he had made and not on appellant to prove the signature.

The only way that we can account for the action of the trial judge on the objection to the introduction and evidence on the note sued on, and we believe that this court will be of the same opinion, when they have looked at the record, and that is defendant's counsel, now appellee, in stating his reason for objection to the court, misrepresented the language of this plea and did not correctly state what the plea set out and what defense was really interposed therein. We submit that both errors set up in this brief, are revisible error and that this court should reverse this case and send it back for a new trial, so that substantial justice might be done, and plaintiffs, now appellants, be given an opportunity to present its evidence in this case before having same passed on and a judgment entered against them contrary to well settled law and justice.

We respectfully submit that this case should be reversed and remanded.

S. D. Neil, for appellee.

The pleader was guilty of having...