Massey v. the Farmers' Nat'l Bank of Va..

• Decision Date: 28 September 1882
• Citation: 1882 WL 10415,104 Ill. 327
• Parties: HENDERSON E. MASSEYv.THE FARMERS' NATIONAL BANK OF VIRGINIA.
• Court: Illinois Supreme Court

104 Ill. 327

1882 WL 10415 (Ill.)

HENDERSON E. MASSEY

v.THE FARMERS' NATIONAL BANK OF VIRGINIA.

Supreme Court of Illinois.

Filed at Springfield Sept. 28, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Cass county; the Hon. CYRUS EPLER, Judge, presiding.

Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for the appellant:

By the rules of the common law, the dismissal of the suit as to Henry C. Massey would not render him a competent witness, because of his interest in the result of the suit. 1 Greenleaf on Evidence, secs. 386, 393-7.

The wife, by the common law, is disqualified in any case in which her husband is, by reason of interest. Illinois Central R. R. Co. v. Taylor, 24 Ill. 323.

The recent legislation leaves the husband and wife in the same position as at common law, except when the litigation has reference to the separate property of the wife. Rev. Stat. 1874, p. 489, sec. 5. See, also, Phares v. Barbour, 49 Ill. 370; Meyer v. Hartman, 72 Id. 442; Hays v. Parmelee, 79 Id. 563; Tripp v. Barker, 78 Id. 146; Hawver v. Hawver, 78 Id. 412.

The court erred in allowing the impeaching witnesses to be asked: “In a case where he was pecuniarily interested, would you believe him under oath?” Greenleaf on Evidence, (12th ed.) sec. 461. See dissenting opinion of BREESE, J., in Eason et al. v. Chapman, 21 Ill. 36; also, Crabtree v. Hagerman, 25 Id. 238.

The reputation sought to be affected must be that of the party at the time he testifies, and not at some remote time in the past. 1 Wharton on Evidence, sec. 563; State v. Howard, 9 N. H. 485; Rogers v. Lewis, 19 Ill. 405; Aurora v. Cobb, 21 Ind. 492; Commonwealth v. Billings, 97 Mass. 495; People v. Abbott, 19 Wend. 192.

To test the witness' knowledge of the handwriting of the party, it was proper to show him the list of signatures, on cross-examination, and ask him to state which of them were genuine, if any. Wharton on Evidence, sec. 710. Messrs. KETCHAM & GRIDLEY, and Mr. L. H. HATFIELD, for the appellee:

The questions put to the witness as to the handwriting of the party, was in effect an attempt at comparison of signatures, which is not allowed. Kernin v. Hill, 37 Ill. 209.

Witnesses will not be allowed to compare a signature in question with one not admitted or established to be genuine. Vinton v. Pierce, 14 Mich. 287; Ellis v. People, 24 How. 356; Henderson v. Hackney, 16 Ga. 521; Williams v. Drexel, 14 Md. 56; Van Wyck v. McIntosh, 14 N. Y. 439; Duvers v. Barker, 40 Barb. 556.

Under the statute, a wife is competent to testify in behalf of her husband's interest, in a case where he is not a party to the record.

As to the point made as to the manner of the impeachment, we have but two remarks to make: First, the record shows no objection to the form of the question, when there was added to the inquiry whether the witness would believe appellant under oath, the words, “in a case where he was personally and pecuniarily interested;” second, the inquiry so put is restricted, and calls for an answer more favorable to the party impeached.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a suit brought by the Farmers' National Bank of Virginia, against Henry C. Massey, Henderson E. Massey, and George W. Laurie, upon a promissory note, purporting to have been executed jointly and severally by the defendants to the bank. The defendants severed in their pleas, Henry C. Massey pleading the general issue, Laurie the plea of the general issue, sworn to, and Henderson E. Massey filed a plea denying the execution of the note, verified by affidavit. On motion, the plea of Henry C. Massey was stricken from the files, and he was defaulted. Two trials were had, in which, the jury failing to agree, they were discharged. The plaintiff afterward dismissed its suit as to the defendant Laurie, and a third trial was entered upon, on the second day of which, on motion of the plaintiff, the default as to Henry C. Massey was set aside, and the suit was dismissed as to him, and subsequently a verdict was rendered against Henderson E. Massey for $4982.42, upon which, after overruling a motion for a new trial, judgment was entered, which was affirmed on appeal to the Appellate Court for the Third District, and an appeal taken by Massey to this Court. There are various errors assigned.

As the action was brought jointly, it is insisted the dismissal of the suit as to Henry C. Massey and Laurie released the other defendant, Henderson E. Massey. In a joint suit, where one of the defendants makes a defence personal to himself, it is the recognized proper practice to enter a nolle prosequi as to him. This would justify the dismissal as to Laurie, and though the dismissal as to Henry C. Massey might not come within this rule, yet we see no just ground of complaint for this action, on the part of Henderson E. Massey, inasmuch as the note being several, the plaintiff would have been entitled to have brought suit and obtained judgment against Henderson E. Massey alone. Section 24 of the Practice act, too, (Rev. Stat. 1874,) provides that at any time before final judgment, amendments may be allowed discontinuing as to any joint defendant, and changing the form of action.

Henry C. Massey was the principal in the note, and his wife was received as a witness on the part of the plaintiff. It is urged there was error in this, that Henry C. Massey was interested in the result of the suit, and that the wife, by the common law, is disqualified in any case in which her husband is disqualified by reason of interest. We fail to perceive the interest which would have rendered Henry C. Massey incompetent as a witness for the plaintiff at the common law, and see no error in the admission of his wife as a witness. See Sconce v. Henderson, 102 Ill. 376, in favor of the competency of Henry C. Massey.

One Gatton, a witness for plaintiff, testified that some years before, he had seen Henderson E. Massey write, and that it was his impression that the signature of the name of said Massey to the note in question was in his handwriting. After then stating, on cross-examination, that it was six or seven years since he saw Massey write, and that he did not know whether he would know his signature now, and did not know that “he could pick out his signature in the bank,” defendant's counsel handed the witness a paper having written on it the name “H. E. Massey” sixteen times, and asked the witness to point out the genuine signatures, if any were genuine. The court excluded the question, and exception is taken to this. It is urged that this question was proper on cross-examination, for the purpose of testing the knowledge of the witness, and as authority therefor reference is made to 1 Wharton on Evidence, sec. 710, where the author says: “There is little question that a witness may, on cross-examination, be tested by putting to him other writings not admitted in evidence in the case, and asking him whether such writings are in the same hand with that in litigation.” Without stopping to inquire as to the general correctness of this observation, and especially where the rule obtains, as in this State, that evidence of the genuineness of handwriting, based on comparison of hands, is not admissible, we think that at least with reference to test papers got up for the occasion, as in the present case, there was no error in not allowing the course of cross-examination proposed. The same author, further on, in section 715, remarks: “We have already seen that a party can not make testimony for himself by writing specimens for the instruction of witnesses afterwards to be called, as to his handwriting. By the same reasoning a party can not be permitted to get up in this way test papers to be used subsequently for comparison of hands.” And although the paper here offered was not to be used professedly for comparison of hands, we think its admission for the purpose declared would be alike objectionable. See Griffits v. Ivery, 11 A. & E. 322, and King v. Donahue, 100 Mass. 155. In the former case, where there was the disallowance of a like course of...