Cawoods's Administrator v. Lee

32 Ind. 44 | Ind. | 1869

Gregory, J.

Lee filed a promissory note purporting to be executed by the. intestate, payable to one Patrick, as a claim in his favor against the estate.

The claim was not admitted by the administrator, and was placed on the issue docket for trial. The case was transferred “to the court below, the judge of the common pleas court having been of counsel for the claimant.

In the circuit court an amended complaint was filed, making the payee a party to answer to his interest; he filed a disclaimer. The administrator answered by the general denial. Trial by the court; finding for the claimant. A motion for a new trial, on the alleged ground that the evidence did not sustain the finding, was overruled. The only evidence, which is a part of the record by bill of exceptions, is the note, which was read without objection.

In Riser v. Snoddy, Adm’r, 7 Ind. 442; and in Mahon’s Adm’r v. Sawyer, 18 Ind. 73, this court held, that in an action upon a note or written contract against the estate of the maker, the handwriting or execution of the note or contract must be proved, sec. 80, 2 R. S. 44, being inapplicable to such cases.

It is contended by the appellee that the proof of the execution of the note was waived by the administrator by his allowing it to be read without objection.

The general denial in this class of cases puts in issue the execution of the note. The claimant had a right to introduce the note in evidence, at least as prima fade proof of its execution. Its execution was a fact in issue, and was as necessary to be proved as tbe production of tbe note in evidence. Tbe failure to object to tbe introduction of tbe note did not waive this proof.

J. N. Evans, for appellant. J. W. Burton and J. II. O’Neall, for appellee.

Tbe court below erred in overruling tbe motion for a new trial.

Judgment reversed, with costs; cause remanded, with directions to grant a new trial, and for further proceedings.