35 Iowa 112 | Iowa | 1872
I. On the trial the defendant objected to the introduction of the note in evidence, which being overruled he excepted and now assigns the ruling as error. The ground of the objection made in the court below, and insisted on in this court, is, that “ the signing and execution of the same was denied under oath.” The first count of the answer is as follows : “ The defendant, answering to the petition of plaintiff, says that he denies that he ever signed or executed a promissory note of the tenor and effect as set forth in the petition of the plaintiff, or authorized or empowered any one so to do for him or in his name.” The answer was sworn to by defendant.
II. The third count of the answer avers that the signature of the defendant “ to said alleged note was obtained, if he signed the same, and of which fact he has no sufficient knowledge, information or advice to form a belief, by false and fraudulent representations,” etc. The court properly held this denial of knowledge and information to be insufficient to require proof of the signature to the note. Loomis & Leroy v. Metcalf & Fuller, supra ; Hall v. The Ætna Manufacturing Co., supra.
Appellant insists, however, that if his pleading was defective or insufficient appellee should have attacked it by motion or demurrer. A sufficient answer to this is, that appellee is not objecting to appellant’s pleading; on the other'hand, it is the appellant objecting to plaintiff’s evidence, because, as he says, the signature to the note sued on was not first proved. The appellant is claiming that such preliminary proof was rendered necessary by his answer. We have seen that in this respect the answer falls short of so doing. And again, the answer denying the execution and signing of the note, as a note, is not vulnerable to attack by either motion or demurrer. Such denial makes an issue upon which the plaintiff’s right of recovery might be defeated by showing that the instrument after it had been signed had been changed to a promissory note. See Lake v. Cruikshank, supra.
Having noticed the only questions urged in argument and finding no error in the record, the judgment of the circuit court is
Affirmed.