MOORE v. LAWRENCE

(93 South. 415) MOORE v. LAWRENCE. (2 Div. 782.) (Supreme Court of Alabama. April 20, 1922. Rehearing Denied May 17, 1922.) 1. Lost instruments <®=>23( 1)— Plaintiff, suing on lost note, had burden of proving its execution. In an action on a lost note, the plaintiff had the burden of proving the execution of the note. 2. Lost instruments &wkey;o23(3) — Testimony that note was in name of defendant held sufficient to prove execution of. lost note by defendant. In action on lost note, testimony of a witness, who had had possession of a note, that the note was in the “name” of defendant, 7¿eld sufficient to prove execution of the note by defendant, in the absence of evidence to the contrary. <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Circuit Court, Perry County; S. E. Hobbs, Judge. Action on promissory note by W. S. Lawrence against R. L. Moore. Erom a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed. Clifton C. Johnston, of Marion, for appellant. * Code 1907, § 3967, does not apply, where the offer is to prove a copy. 81 Ala. 476, 2 South. 668; 174 Ala. 480, 56 South. 953 ; 85 Ala. 246, 4 South. 612; 88 Ala. 356, 6 South. 684. Testimony that R. L. Moore’s name was signed to the note did not prove its execution. 14 Ency. Eiv. 750; 110 Ala. 438, 18 South. 312; 22 C. J. 942. A. W. Stewart, of Marion, and R. B. Evins, of Greensboro, for appellee. Eailure of defendant to deny execution by sworn plea admitted the execution of the note sued on. Code 1907, § 3967. [MAJORITY — SAYRE, J.] SAYRE, J. Action on a promissory note, payable to Lawrence Dry Goods Company and assigned to plaintiff, appellee. At the trial it appeared that the note in suit had been lost since the commencement of the action. In this state of the case the burden was on plaintiff to prove the execution of the note!' Garrett v. Garrett’s Adm’r, 64 Ala. 263; Parker v. Edwards, 85 Ala. 246, 4 South. 612. A witness, who had had possession of the note, and by whom its loss was proved, after describing the note, was asked, “Whose name was to it?” He answered, “R. L. Moore,” and the matter of the execution of the note was left to rest upon this testimony. Appellant now takes the point — and it may be conceded for the argument that he took the point in the trial court — that there was no proof of the execution of the note. In this state of the record we hold that there was evidence of the execution of the note; that the evidence imports' — nothing being shown to the contrary or by way of impeaching the competency of the witness — that the note was signed R. L. Moore, in the handwriting of R. L. Moore. It results, hence, that the judgment must be affirmed. Affirmed. ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.