Wilson v. Scroggs

• Decision Date: 29 April 1929
• Docket Number: 12109.
• Citation: 85 Colo. 537,277 P. 784
• Parties: WILSON v. SCROGGS.
• Court: Colorado Supreme Court

277 P. 784

85 Colo. 537

WILSON v. SCROGGS.

No. 12109.

Supreme Court of Colorado

April 29, 1929

Rehearing Denied May 27, 1929.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Action by M. W. Wilson against Ray Scroggs. Judgment for defendant and plaintiff brings error.

Reversed and remanded.

Bentley M. McMullin, of Denver, for plaintiff in error.

Thomas E. Anderson, of Denver, for defendant in error.

ALTER J.

This action was begun, as a foreclosure suit, in the district court. The parties here appear in the same order as below and will be referred to as plaintiff and defendant.

The plaintiff alleged that the defendant, on May 1, 1923, for a valuable consideration, made, executed, and delivered his promissory note, in the sum of $500, to William W. Ellis and, to secure the payment of the same, executed and acknowledged a certain deed of trust; that the said Ellis, for a valuable consideration, before maturity, sold, indorsed, and delivered the note to the plaintiff herein; that the plaintiff was the owner and holder of the note, in good faith, and without notice of any infirmity in the instrument, or defect in the title of the payee therein.

The defendants, excepting Scroggs, defaulted, and judgments of default were duly entered. The defendant Scroggs filed his answer, in which he disclaimed any title or interest in the premises; denied execution of the note; and denied consideration therefor.

The trial was before a jury, which returned its verdict in favor of the defendant, and thereafter judgment upon the verdict was entered in favor of the defendant and against the plaintiff. The plaintiff assigned 39 errors, but, of these, only 12 are argued and relied upon here for reversal. We shall confine our opinion to those errors relating to the exclusion of evidence.

The defendant having denied the execution of the note in question, the plaintiff sought to introduce certain purported notes and deeds of the defendant's in evidence, as the basis of comparison of signatures, so that experts might testify therefrom, and the jury might determine the genuineness of the signature to the note. This evidence, the plaintiff contends, was admissible under section 6538, C. L. 1921, reading as follows: 'Comparison of a disputed writing, with any writing proved to the satisfaction of the court to be genuine, shall be permitted to be made by witnesses in all trials and proceedings, and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.'

The plaintiff called, as his witnesses, two of the notaries before whom, it is alleged, deeds of trust were acknowledged. Each of these witnesses testified, or offered to testify, that the defendant personally appeared before him, and acknowledged the deed. The court, upon inquiry, learned that the defendant disputed the genuineness of these signatures, and declined to admit the deeds in evidence. The receiver of the Broadway National Bank was called to identify a note and deed of trust, purporting to be signed by the defendant, but, upon defendant's denial of the genuineness of the signature, the exhibits were not admitted. This is but a sample of the evidence which was offered and rejected, the court saying, upon sustaining objections to the admission of the exhibits:

'The court now rules that exhibits J and K are exhibits in which the record shows here now that the defendant denies the authenticity of his signature. That being the case, the objection should be sustained because this is not the note and deed of trust that is being tried in this case. * * *

'The court, in order to clarify the situation simply rules this, that as a matter of law, you cannot use for comparison a disputed signature, which is the signature perhaps on exhibits J and K, for the purpose of proving the genuineness of another signature, which is also disputed. That would not help any. You have to compare a disputed signature with what is admitted to be a genuine signature. Otherwise, there could be any number of disputed signatures, but no matter how many there might be, they would be all disputed, and there would be no comparison that would help any. * * *

'If this is a disputed signature whenever we get to it, the court would on the precedent heretofore established in this case sustain an objection to it as a disputed signature.'

It is fair to say the court held that, unless the defendant admitted the genuineness of the signaure, no instrument purporting to be signed by him could be offered in evidence as a standard of comparison, for use by either the experts or the jury. This is not the law, unless we determine that the words, 'proved to the satisfaction of the court to be genuine,' are meaningless. The above-quoted remarks of the trial judge clearly indicate that he was adopting an unreasonable and unwarranted construction of section 6538, supra. If the trial judge was right, this defendant could nullify, at will, that portion of section 6538 under consideration, because it would put the selection of evidence, as a basis of comparison, at his exclusive command. If he deemed the evidence dangerous to him, he could withhold it from the consideration of the court and jury by a simple denial of the authenticity of the signature, and thus foreclose all further inquiry. By indefinite resort to such tactics, he might, if he chose, keep out all...