Merritt v. Straw

• Court: Indiana Appellate Court
• Writing for the Court: DAVIS
• Citation: Merritt v. Straw, 6 Ind. App. 360, 33 N. E. 657 (Ind. App. 1893)
• Decision Date: 16 March 1893
• Parties: MERRITT v. STRAW.

6 Ind.App. 360

33 N.E. 657

MERRITT

v.STRAW.

Appellate Court of Indiana.

March 16, 1893.

Appeal from circuit court, Elkhart county; J. M. Van Fleet, Judge.

Action by Samuel D. Straw, as administrator of John Merritt, against Ira E. Merritt, to recover on a note executed by defendant to plaintiff's intestate. Judgment for plaintiff. Defendant appeals. Affirmed.H. C. Dodge, for appellant. Chamberlain & Turner, for appellee.

DAVIS, J.

The appellee, as administrator of the estate of John Merritt, deceased, instituted this action in the court below, against appellant, on a note executed by appellant to said John Merritt in his lifetime. Such proceedings were had that on the 18th of April, 1892, judgment was rendered in favor of appellee, against appellant, for $170.09.

The transcript of the record on this appeal was filed in the office of the clerk of the supreme court on the 22d day of December, 1892. The appellee insists that the appeal is governed by section 417, Elliott, Supp., and has moved to dismiss the appeal because it was not prosecuted within the time prescribed by the statute. See, also, sections 2454, 2455, 2457, Rev. St. 1881. As applicable to the question now under consideration, we quote from a recent case decided by the supreme court, in which Coffey, J., says: “These statutes have been so often construed by this court that there is now no room for doubt as to their meaning. The rule to be deduced from the decisions upon the subject is that in all proceedings under the law providing for the settlement of a decedent's estate, where the exercise of the probate jurisdiction of the court is invoked, the appeal is governed by sections 2454, 2455, Rev. St. 1881; but in all actions authorized by the Code, and not involving the exercise of the probate jurisdiction of the court, the appeal is governed by the Code, and these sections have no application.” Koons v. Mellett, 121 Ind. 585, 23 N. E. Rep. 95, and authorities there cited. The appeal in this case is properly prosecuted, under section 633, Rev. St. 1881,¹ and the motion to dismiss is therefore overruled.

The only answer in the case was plea of payment. On the trial, which was by jury, after offering evidence tending to prove that the signature appended to a receipt was the genuine signature of John Merritt, the decedent, the defendant introduced and read the receipt in evidence, in the words following: “Elkhart, Ind., Feb. 17th, 1891. Received of Ira Merritt payment in full to date for all claims and debts owing me. John Merritt.” The evidence was conflicting as to whether the name signed to the receipt was the hand writing of said John Merritt. Thereupon appellant took the witness stand in his own behalf, and was shown a letter or paper, and asked to state whose genuine handwriting it was. Appellee objected to the question on the ground that appellant was not a competent witness, under the statute. Counsel for appellant then stated that he offered to prove by him, in answer to the question, that said exhibit was the genuine writing and signature of John Merritt, and, when such signature should be established, to use the same for the purpose of comparison with the signature to the receipt introduced before the jury, with the view of establishing the genuineness of such signature by comparison. The only question discussed on appeal is whether appellant was a competent witness to testify concerning the genuineness of the signature of said John Merritt, which the exhibits disclose were attached to letters purporting to have been written by decedent to appellant in the years 1883 and 1889. That part of the section ² on the construction of which the decision of this question depends is as follows: “In suits or proceedings in which an executor or administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by such executor or administrator, any person who is a necessary party to the issue or record, whose interest is...