State ex rel. Winslow v. Fisher

• Decision Date: 14 November 1941
• Docket Number: 16676.
• Parties: STATE ex rel. WINSLOW v. FISHER, Clerk of Court et al.
• Court: Indiana Appellate Court

37 N.E.2d 280

109 Ind.App. 644

STATE ex rel. WINSLOW v. FISHER, Clerk of Court et al.

No. 16676.

Appellate Court of Indiana, in Banc.

November 14, 1941

Charles M. Wells, of Indianapolis, and Sam L. Trabue, of Rushville for appellant.

Chauncy W. Duncan, of Rushville, for appellees.

FLANAGAN Judge.

The complaint in this cause alleges that the executor of the last will and testament of Rachel Winslow, deceased, in making final distribution in her estate, paid the distributive share of appellant relator to the then clerk of the Rush Circuit Court for the use and benefit of said relator. That thereafter appellee Robert Dale Fisher became clerk of said court and as such received said funds. That on February 24 1933, after he had become clerk of said court, appellee Fisher paid said funds to one H. R. Arnold upon presentation by said Arnold of a power of attorney purported to have been executed by relator, authorizing said Arnold to receive the funds.

The complaint further alleges that relator did not execute the power of attorney, that in consideration for a covenant not to sue he has been paid one-half of the amount involved by the bonding company of the notary whose certificate was attached to the purported power of attorney, and seeks recovery of the remaining one-half from appellee Fisher and from appellee American Surety Company of New York, as surety on the official bond of Fisher as such clerk.

Appellees filed an answer in five paragraphs but the only paragraphs involved in this appeal are the first two: (1) an answer of general denial, and (2) an answer of payment.

The issues so formed were tried to a jury which returned a verdict for appellees.

Errors relied upon for reversal are: (1) the overruling of appellees' amended motion for a new trial; (2) the overruling of appellant's motion for the trial court to weigh the evidence before ruling on the amended motion for a new trial; and (3) the failure of the trial court to weigh the evidence before ruling on appellant's amended motion for a new trial.

The reasons assigned by appellant under its amended motion for a new trial are: (1) error in admitting into evidence the purported power of attorney; (2) the verdict of the jury is not sustained by sufficient evidence; (3) the verdict of the jury is contrary to law; (4) the refusal of the trial court to instruct the jury peremptorily in favor of appellant; (5) giving by the court of its own motion its instructions numbered 1 to 16; and (6) permitting appellees' attorney to state to the jury during argument that appellee Fisher had a right to assume that the purported power of attorney was genuine and to rely thereon, and in refusing to direct the jury to disregard such statement.

The power of attorney in question bore the certificate, seal and signature of one Ann Norine Davis, a notary public in and for the city of St. Louis, Missouri, together with the certificate of the clerk of the Circuit Court of St. Louis Missouri, that she was duly commissioned under the laws of that state.

Appellant claims no defect in the certificate of the notary public but contends that under Burns' Indiana Statutes Annotated 1933, Section 2-1634, Baldwins' Indiana Statutes Annotated 1934, Section 256, the notary's certificate merely raises a presumption as to the execution of the instrument, which presumption disappears upon denial under oath, and appellant having denied the execution under oath, the trial court erred in admitting the power of attorney in evidence without proof of its execution other than the notary's certificate.

The question as to whether an instrument duly acknowledged before an authorized officer could be admitted in evidence without further proof of its execution after its execution has been denied under oath, was presented to our Supreme Court in the case of Krom v. Vermillion, 1895, 143 Ind. 75, 41 N.E. 539, and decided adversely to appellant's contention. No error was committed by the trial court in admitting the power of attorney into evidence.

Appellant next contends that even though the power of attorney was properly admitted in evidence, its admission merely raised a presumption as to its execution by relator, which presumption disappeared upon the introduction of evidence to the contrary, leaving no evidence at all from which the jury could find that it was in fact signed by relator. This is the contention advanced under specifications numbered 2, 3, 4 and 5 of appellant's motion for a new trial; on the theory under specifications 2 and 3 that there was no evidence to sustain the verdict, under specification 4 that there being no evidence of the execution of the power of attorney, the court should have instructed the jury peremptorily for appellant; and under specification numbered 5 that appellant being entitled to a peremptory instruction, no other instructions should have been given the jury. No other fault is found with the instructions.

We agree with appellant's contention that the certificate of the notary public merely raises a presumption as to the execution of the instrument, which presumption disappears upon the introduction of evidence to the contrary. See Kaiser v. Happel, Ind.Sup.1941, 36 N.E.2d 784; Baltimore & Ohio R. Co. v. Reyher, Adm'r, 1939, 216 Ind. 545, 24 N.E.2d 284; Minardo v. State, 1932, 204 Ind. 422, 183 N.E. 548. But it does not follow that the jury in this case was therefore without evidence as to the signing of the power of attorney by relator. Admittedly genuine signatures were in evidence and the jury had a right to compare them with the...