9 S.D. 506 | S.D. | 1897
This is an action on a promissory note, alleged to have been executed by Ole T. Breiland, since deceased.
The objections to the introduction of the note might have been removed if plaintiff had been given an opportunity. To receive it and subsequently exclude it, without notice, was an irregularity in the proceedings of the court, by which plaintiff was prevented from having a fair trial, and cause for a new trial (Comp. Laws, § 5088), but it was not designated in the notice of intention, and therefore cannot be considered by this court. Only two statutory grounds (the sixth and seventh) are mentioned in the notice of intention. The irregularity complained of clearly belongs to the first. Comp. Laws, § 5088. A party intending to move for a new trial must serve upon the adverse party a notice of his intention, designating the statutory grounds upon which the motion will be made. Comp. Laws, § 5090. Such grounds should be stated in the language of the statute, and only such as are stated can be considered by the court below, or upon appeal. It will, therefore, be necessary to regard the record as if the plaintiff offered such preliminary proof as he desired and the note was excluded during the trial.
Did the court err in excluding the note? There was competent uncontradicted evidence of the genuineness of the signature. Possession by the apparent payee was presumptive evidence of delivery. Hence the only question is in relation to the alleged alteration. The original note is a part of the bill of exceptions, but not subject to the inspection of this court. Plaintiff should have printed in his abstract a fac simile, or have alleged that there was no alteration apparent upon its face. If not denied by an additional abstract, his contention would have been conceded, or, if denied, the issue thus raised would have required an examination of the original instrument.
The question of presumption and burden of proof, where interlineations or erasures appear on the face of an instrument, is one upon which there is a wilderness of authorities and much conflict of opinion. Any attempt to cite or consider the innumerable cases on this question would be both impracticable and useless. We are of the opinion that the correct rule is that the burden is upon the maker to show that the alteration was made after delivery; or, to state the proposition with more decision, the proof or admission of a signature of a party to an instrument is prima facie evidence that the instrument written over it is his act, and this prima facie evidence will stand as binding proof, unless the maker can rebut it by showing by evidence that the alteration was made after delivery, and that the question when, by whom, and with what intent the alteration was