14 N.M. 425 | N.M. | 1908
OPINION OF THE COURT.
:(After making the foregoing statement.) The first assignment of error is the action of the court in admitting the contract in question. Defendants contend that this was improper, because there was no preliminary proof that it was signed by or on behalf of either the plaintiff or the defendants. The court below held that as there was no sworn denial of the execution of the contract, it stood admitted as pleaded and that no preliminary proof was necessary. The instrument sued on was referred to in the complaint and a copy thereof attached to the complaint. In support of the court’s ruling we are referred to C. L. See. 2984, which is as follows:
"Section 2984. When a written instrument is referred to in a pleading, and the same or a copy 'thereof is incorporated in, or attached to such pleading, the genuineness and due execution of such written instrument and of every in-dorsement thereon shall be deemed admitted, unless in a plteading or writing filed in the cause within the time allowed for pleading, the same be denied under oath: Provided, That if the party desiring to controvert the same is, upon, reasonable demand, refused an inspection of such instrument, the execution thereof shall not be deemed admitted by failure to deny the same under oath. Such demand must be in writing filed in the cause, and served upon the opposite party or his attorney: Provided, That the provisions of this section shall not apply to deeds of conveyance of real estate.”
The terms of such statutes have been repeatedly the subject of judicial consideration. An instance of this is found in Cox v. Northwestern Stage Company, 1 Idaho 376, 381 where in construing a statute practically identical with ours it is said:
“The ‘genuineness’ of an instrument evidently goes to the question of its having been the act of the party just as represented, or in other words, that the signature is not spurious; and that nothing has been added to it or taken away from it, which would lay the party changing the instrument or signing the name of the person liable to forgery. The ‘due execution’ of an instrument goes to the manner and form of its execution according to the laws and customs of the country, by a person competent to execute, it.”
It is contended by appellants in the first place that this section was repealed by the Code of Civil Procedure and especially sub-section 40 which provides that the answer “may be a general or specific denial of each material allegation of the complaint controverted by the defendant.”
“At the time the note was offered, objection was made to its admissibility, upon the ground that under the sworn plea of the general issue, its genuineness must be first proven. We do not think that a sworn plea of general issue is such denial as is required by section 1922 Inow section 29841 and that as the case then stood the objection was properly overruled. The objection would have stood good, however, if predicated upon the second plea, which we hold to have been improperly stricken out.”
The common law plea of general issue was much broader than the code denial, for it permitted evidence not only of matters tending directly to deny plaintiff's cause of action but also of new matters tending to undermine it. Bliss on Code Pleading, Sec. 324; Piercy v. Sabin, 10 Cal. 22; Scott v. Morse, 54 Ia. 732. If, therefore, as held by this court in the Foster case, the common law plea of ■general issue duly sworn to was insufficient to meet the requirements of section 2984, much less is a verified general denial under the code. We believe it to have been the intention of the legislature in enacting section 2984 and in retaining it by the express terms of the code to require parties defending against written instruments to state specifically any defense against the integrity of the instrument sued on. Instead of lurking behind general denials in a matter of this importance they are required to come out into the open and tender in so many words'the issue as to whether the instrument is their instrument. This is in lino with the spirit of the Code practice, which has for its purpose the elimination of useless issues and the avoidance of unnecessary expense in preparing the proofs.
We hold, therefore, that the fact that the instrument sued on was signed by Toti & G-radi, was conclusively admitted by the absence of a specific sworn denial of that fact and the court below was right not only in admitting the instrument without proof of its execution but also in excluding any evidence tending to impeach its genuineness and due execution.
“I will tell you that we received the boc with the ‘doals’ and the boc of jewerly. We have paid for the jew-erly box express charges $2.35 and for the dawl we paid $3.55, what makes $5.90. Please send me this amount by return mail and we will return you your goods. This will be the best for you. After this will charge you 20 cts. per day for storage. Our time is expensive and we cannot afford to be responsible for idiots that you send out here.”
The case is accordingly reversed and remanded with instructions for further proceedings not inconsistent with this opinion, and it is so ordered.