20 Mont. 327 | Mont. | 1897
The most important piece of evidence introduced upon the trial was a paper purporting to be the request of W illiam Hamilton to the Covenant Mutual Benefit Association to change the beneficiary in his certificate from the name of his daughter, Mrs. E. D. Baxter, the plaintiff herein, to that of his wife, Mrs. Kate M. Hamilton.
This paper was signed “William Hamilton,” and just below this signature was appended a consent and request to the foregoing change, signed “Mrs. E. D. Baxter.”
The witnesses whose names appear on the paper were “John B. Scott’ ’ and ‘ ‘Hilma Johnsson. ’ ’
Upon the trial many genuine signatures of William Hamilton were introduced, and various experts were called to testify by comparison of the genuine writings and the signature upon the request to the Covenant Mutual Benefit Association just above referred to. The plaintiff’s witnesses swore that, in their opinions, the signature “William Hamilton” to the request was not genuine; while, on the other hand, witnesses for the defendant testified that they believed it was genuine.
Mrs. Baxter, the plaintiff, positively swore that she had never signed the consent to the change of beneficiaries, and that what purported to be her signature was a forgery.
One of the persons whose name appeared as a witness (John B. Scott) testified positively that he had never signed the paper introduced at all, and that the name ‘ ‘John B. Scott, ’ ’ signed thereto, was not his signature.
The other person whose name appears on the paper as a witness (Hilma Johnsson) said that she had no recollection of
The defendant Mrs. Hamilton swore that Mrs. Baxter had signed the consent in her presence, and that Mr. Hamilton signed the request for the change while witness and Mrs. Baxter were in the room with him.
There were various circumstances and facts introduced by the plaintiff tending to corroborate her version of the facts, but it is not necessary to incumber this opinion with any further statement of the evidence.
The court submitted special issues to the jury, wherein they found that William Hamilton did not sign the paper bearing the name “William Hamilton, ” requesting a change of beneficiaries in his life insurance; that Mrs. Baxter did not sign the consent to the alleged change of beneficiaries; that the signature “William Hamilton,” appended to the paper referred to, was a forgery; and that the signature “Mrs. E. D. Baxter,” which appears upon the paper, was also a forgery. It was likewise specially found that William Hamilton did not, in the presence of John B. Scott and Hilma Johnson, sign the paper referred to.
The District Court adopted these findings, and entered a judgment for the plaintiff.
On the motion for a new trial, the court refused to disturb the verdict of the jury.
The case presented is therefore one where there was a radical and substantial conflict in the evidence, and where the lower court has refused to grant a new trial. Therefore this court cannot now disturb the verdict of the jury and the judgment of the District Court upon the ground that the evidence was insufficient to justify the verdict. (Methodist Church v. Rickards, 16 Montana 70, 40 Pan. 73.) This disposes of the main contention of the appellant.
Objection is made to the refusal of the court to permit the defendant to amend her answer by pleading the statute of limitations. This proposed amendment was based upon the theory that the plaintiff, having acquired an interest in the
We do not see exactly how the plaintiff ever could have acquired any interest whatever in the benefit other than a contingent one, which could not vest until after the death of her father, William Hamilton. Furthermore, the jury having found that the plaintiff never signed the consent to the change of beneficiaries at all, and that the signature of William Hamilton was a forgery, any amendment based upon the supposition that he did make the request for the change, and that plaintiff consented to such a change, became immaterial. Again, request to make this amendment was not made until after the close of the testimony in the case, and we see no abuse of discretion on the part of the District Court in refusing to allow it.
Objection was made to the use of certain signatures clearly proven to be the genuine signatures of William Hamilton, for the purpose of comparison with the writing on the request for a change of beneficiaries. Sections 3234 and 3235, Code of Civil Procedure, permitted the introduction of such evidence. (Marshall v. Hancock, 80 Cal. 82, 22 Pac. 61; Moore v. Palmer (Wash.) 44 Pac. 144.)
It is also argued that under the law in force prior to the adoption of the code, and at the time of the commencement of this action, knowledge of handwriting by comparison, or comparisons of handwritings, upon the trial of the case, was not permissible. Davis v. Fredericks, 3 Montana 262, is cited by appellant to support this contention.
Whatever the law may have been prior to the adoption of the new code is not important, for the code provisions control in this case. It is fundamental that a person has no vested right to have a controversy determined by existing rules of evidence. Like other rules affecting the remedy, they are subject to modification and control by the legislature. (Cooley,
The court refused to grant a new trial upon the ground of newly-discovered evidence. Two affidavits upon which defendant relied in this respect were addressed principally to newly-found opinion evidence of two persons that the signature “John B. Scott” on the paper in evidence was genuine. Scott, by counter affidavit, denied the matter in such affidavits. Neither affidavit referred to the signatures of William Hamilton or Mrs. E. D. Baxter, the genuineness or falsity of which were the material issues submitted to the jury.
As a rule, courts will not grant new trials on the ground of newly-discovered evidence, which goes only to impeach the credit of a witness on the trial. (Leyson v. Davis, 17 Montana, 220, 42 Pac. 775.) On the showing made, we cannot say that the discretion of the District Court was not properly exercised.
The judgment and order appealed from are affirmed.
Affirmed.
