135 Iowa 670 | Iowa | 1907
To their answer the defendants attached interrogatories to be answered by plaintiffs relating to the matter of the execution and delivery of the note in suit. At the trial plaintiffs’ answers to these interrogatories were offered in evidence in their behalf, and admitted over defendants’ objection that they were incompetent, the plaintiffs being both present in court. After the answers to interrogatories were read, plaintiff Stephens was called as a witness in behalf of plaintiffs, and testified that an exhibit
Under Code, section 3604, answers to interrogatories propounded by an adverse party concerning any of the material facts in issue “ may be read by either party as a deposition between the party interrogating and the party answering.” Under Code, section 4684, depositions in a civil action at law can only be taken for use on the trial, if the witness is not a resident of the county, or is about to go beyond the reach of a subpcena, or is for any other' cause expected to be unable to attend court at the time of the trial; and section 4709 provides that the deposition or the record must show the witness to be a nonresident of the county, or such fact as authorizes the use of a deposition in evidence, and that “ no such deposition shall be used on the trial, if at the time the witness himself is produced in court.”
Had the stamp been thus affixed at the time the instrument was offered in evidence, unquestionably the objection under the federal statute would have been removed. State v. Glucose Sugar Refining Co., 117 Iowa, 524; Harvey v. Wieland, 115 Iowa, 564. Certainly the defendant was not prejudiced by the ruling of the court-refusing to exclude the unstamped instrument, in view of the fact that the plaintiffs might have withdrawn the instrument from evidence before the case wa's submitted to the jury and reintroduced it after it had been properly stamped.
The further argument against the instruction is that here was a fraudulent alteration, and that this had effect to destroy the instrument, so that no recovery can be had thereon as against any of the parties. The trouble with this argument is that in neither pleading nor evidence is there any pretense of an alteration in the note. The specific allegation in the answer is of a forgery, and, in evidence, defendants sought only to substantiate that allegation. Assuming, for the purposes of the question, that the evidence was sufficient to warrant a finding that the name of Thomas Farrell was placed on the note by E. D. Farrell without authority, we think it would be violative of every principle of law and morals to permit him to avoid the note by pleading as against an innocent holder his own wrongful
For the error pointed ont, the judgment against the appealing defendants is reversed, and the case remanded for a new trial as to such defendants.— Reversed.