Jones v. Barber

5 Ky. Op. 482, 1871 Ky. LEXIS 465

• Court: Court of Appeals of Kentucky
• Decided: May 23, 1871
• Status: Published

Opinion

Opinion by

Judge Hardin :

This action was commenced by Clifton Rodes against Mitchell and Jones, as makers, and Barber, as endorser of a negotiable note for $5,300, which, during the pendency of the suit was assigned to Barber, who by an order of court was substituted for the plaintiff, and the case being dismissed as to Mitchell, progressed to a trial and judgment against Jones, who prosecutes this appeal for a reversal of the judgment.

The principal issue tried, being on a plea of non est factum, the only essential question is as to the action of the court in permitting the plaintiff, against the objection of the defendant, to prove certain paper, produced by the witnesses, to have been executed by the defendant, and to submit them to the jury to prove by comparison that the note sued on was signed by the defendant.

This was erroneous according to reported decisions of this court. (Woodard, etc., vs. Spiller, 1 Dana 179; McAlaster vs. McAlaster, 7 B. Monroe 269; Hawkins v. Grimes, 13 B. Monroe 257.)

Wherefore the judgment is reversed and the cause remanded for a new trial and other proceedings not inconsistent with this opinion.