Doty v. Braska, 151 Iowa 23

Doty v. Braska

151 Iowa 23 | Iowa | 1910

.Per Curiam.

The petition states a cause of action at law .upon the official bond of the- defendant Braska as clerk of the district court as follows: That one O. D. Doty being held to appear upon a criminal charge pending against him in the district court, and required to give bail in., the sum of $250, one Bentel deposited said sum in money in lieu of a'bond with Braska as clerk of the court ; *24that thereafter said O. D. Doty having been tried upon said charges and found guilty was adjudged to pay a fine of $25, which sum was then and there paid and the bail aforesaid was ordered exonerated. It is further alleged that said Bentel assigned to the plaintiff, Elias Doty, his right to demand and receive the return of the bail deposited as aforesaid, which assignment, it is averred, was in writing and a copy thereof set out in the pleading. The petition further alleges a demand npon Braska for the money and a refusal to return or account for the same, and asks for judgment upon his official bond for the amount with interest. Eor answer to this claim the defendants allege there was no consideration for the alleged assignment to the plaintiff, and that defendants have no knowledge or information sufficient to enable them to form a belief as to the genuineness of the signature to the assignment pleaded in the petition. On the trial the plaintiff offered in evidence the records in the criminal proceeding relating to the bail and its dne exoneration, together with the assignment of the right to receive the return of the deposit to himself. Upon this showing the parties rested and defendants moved for a directed verdict in their favor, because of an entire failure of proof of the genuineness of the signature of the alleged assignor of the claim and cause of action to the plaintiff. This motion was sustained, a verdict returned for the defendants, and plaintiff appeals.

Qur practice .statute .-expressly provides that a party may put the genuineness of a writing in issue by an answer such as was filed in this case. Code, section 3610. The issue being raised, ■ the burden was upon the plaintiff to offer some sort of legitimate evidence as to the character of the signature attached to the paper under which he asserts title to the fund in the clerk’s hands. This he did. not do or. offer .to do. This defect in his proof was called to his attention by the objection raised to the sufficiency. of the evidence, but he did not see fit to cure it by *25a tender of proper testimony, and it is not within the province of this court to make for him a case which, with full notice of the consequences, he refused to make for himself. Whatever we may think of the defense in this particular case, it is one which the statute gave the defendants the right to plead. Having pleaded it, they were entitled to demand that plaintiff establish his alleged rights by legal proof of the sufficiency of the assignment. Not having done so, there was no error in directing a verdict against him.

The judgment of the district court is affirmed.