Holmes Bros. v. McCall, 74 So. 786

Holmes Bros. v. McCall

74 So. 786 | Miss. | 1917

Smith, C. J.,

delivered the opinion of the court.

This is a suit upon a promissory note, commenced by attachment in the court of a justice of the peace. In the court below the trial on the attachment issue resulted in favor of the defendant, he being awarded damages in the sum of eighty-one dollars for the wrongful suing out of the attachment. The cause then came-on to be heard on the merits, and, treating the cáse as one originating in the circuit court, the defendant filed two pleas in bar: The general issue, and a special plea sworn to (which the reporter will set out in full). The plaintiff, thereupon introduced in evidence the note sued on and rested, whereupon, on motion of the defendant, this evidence was excluded, the jury were in*61stracted to find for the defendant, and there ivas a verdict and judgment accordingly. The plaintiffs appeal .and assign as error two rulings of the court below both of which were made in the progress of the trial on the merits, and one of which was the exclusion of the plaintiff’s evidence.

Section 1974 of the Code of 1906 relieves the plaintiff, in suits founded upon any Avritten instrument, from proving “the signature or execution thereof, unless the same be specially denied by a plea, verified by the oath of the party pleading the same.”

The execution of a promissory note is the signing and delivery thereof, both of which must be proven AAdien the execution is denied under oath. The second element— that is, delivery — is presumed prima facie from the int.roduction of the note in evidence by the plaintiff. The defendant’s special plea denied the execution and delivery of the note, but then proceeded to set forth that his signature thereto was obtained by fraudulent representations, so that, construing the plea as a AAdioie and most strongly against the pleader, it denies the delivery but not the signing of the note, and sets forth that the defendant’s signature thereto was obtained by fraud, an affirmative defense to be proven by the defendant.

The plaintiffs were not called upon, therefore, to prove the defendant’s signature to the note; and the motion to exclude their evidence should have been overruled. This error in no wise affects the judgment on the attachment issue, which will remain in full force and effect, but the judgment on the merits will be reversed, and the cause remanded.

Reversed and remanded.