Mississippi Lumber & Coal Co. v. Kelly

Citations

• 19 S.D. 577
• 104 N.W. 265
• 1905 S.D. LEXIS 82

Syllabus

<p>1. In an action on a note, defendant having testified that what purported to be his signature to the answer in the cause was his genuine signature, it was admissible for the purpose of comparison with the signature to the note.</p> <p>2. In an action on a note it was proper to exclude, for the purpose of comparison with the signature to the note, the indorsements on checks payable to the maker of the note, the only evidence as to the checks being that they were drawn by the witness who identified them in favor of the maker of the note, and returned from the bank with what purported to be the signature of the maker.</p> <p>3. Code Civ. Proc. Sec. 533, providés that a written instrument, acknowledged or witnessed, and duly recorded, .and such record, or a certified copy, duly certified by the proper custodian, is admissible without further proof, and that the execution of witnessed instruments, except wills, may be proven in the same manner as the execution of unwitnessed instruments. Civ. Code, Sec. 976, provides that proof of the execution of an instrument, when not acknowledged, may be made by the party executing it, by a subscribing witness, or by other witnesses, as declared in section 978; and by that section the execution of an instrument may be established by proof of the handwriting of the party and of a subscribing witness, if there is one, when the parties and all the subscribing witnesses are dead, or nonresidents, or their residence unknown, or where the subscribing witness conceals himself, or refuses to testify. Held, that such statutes refer to instruments which are to be recorded, and .hence in an action on a note witnessed by two witnesses it was proper to admit other proof of the signature of defendant than the evidence of one of the subscribing witnesses, though he was not called, nor his deposition taken, nor his absence accounted for.</p>