Howard v. Hunter

5 Ky. Op. 535, 1871 Ky. LEXIS 489

• Court: Court of Appeals of Kentucky
• Decided: October 6, 1871
• Status: Published

Opinion

Opinion by

Judge Hardin :

Although so much of the answer as set up, the receipt for $68.00 was withdrawn on the first of December, 1869, and was not afterwards refiled, as it clearly appears that on the final trial it was.recognized and treated by both parties and the court as a legitimate part of the defense without objection, we must regard the irregularity as having been waived.

But the action of the court in admitting and using for the purposes of a comparison of hand writings the note of J. M. Elliott over the objection of the plaintiff and which was excepted to by him, is deemed erroneous. It is a well established rule that comparison of hand writing is not competent evidence. Woodard vs. Spiller, 1 Dana 180; McAllister vs. McAllister, 7 B. Monroe 269.

There are some exceptions to this general rule as shown in the cases just cited, but there is nothing in this case to bring it within those exceptions.

Wherefore the judgment is reversed and the cause remanded for a new trial consistent with this opinion.