Gallagher v. London Assurance Corp. , 149 Pa. 25 ( 1892 )

Opinion by

Mb. Cegcee Justice Paxson,

We think it was error to exclude the paper referred to in the first specification. It had two subscribing witnesses. One of them, H. H. Brown, was shown to reside in New York, and beyond the reach of a subpoena. It was competent, therefore, to prove his handwriting. Patrick Regan, the other subscribing witness, was not called, because the defendant had been unable to find and subpoena him. Secondary evidence was then offered to prove the signatures to the paper, which was rejected by the court, for the reason that the defendant had not shown that exhaustive efforts had been made to procure the attendance of the subscribing witness. What is sufficient proof of the search for an absent witness, in order to admit secondary evidence of the signature, depends somewhat upon circumstances. Where the witness has a fixed residence within the county, the rule should be more strict than where, as here, the defendant had no known fixed residence, and was a laboring man, working about from place to place, as he could obtain employment. It appears that, at a former term of the court, when this case was down for trial, a search was made for the witness in the borough of Pittston, which was his last known place of residence, without success. A subpoena had been then taken out, and an attempt made to serve it. Inquiry was made for the witness at a number of different times, and of a number of different persons, the names of two or three of whom are given. The person employed to serve the subpoena could not find him, nor could he hear anything from him. The witness said : “ Well, I made search. I made such diligent search in the first place, that I did not go the last time, because I was informed by those that I talked to that they did not think there was such a man in the neighborhood or had been there; no one that I talked to knew anything about him. Since then, 1 talked with Mr. Shiffer, asked him if he knew anything about him : he said he supposed likely he was a man who worked for Brown, in all probability did not live there. I recall to mind speaking to Gallagher about him once ; asked him if he knew where he was, and he says he is all right; did not answer me; says, Regan is all right.”

It will be remembered that the Mr. Shiffer referred to was a party to this paper, and that Gallagher is the plaintiff in this suit. The answer of the latter was evasive, and evidently implied that he knew where Regan was. While he was not legally bound to disclose such knowledge, if it existed, it is certainly ungracious in him to raise the objection that a proper search had not been made for the absent witness. The weak spot in the case consists in the fact that when the subpoena was taken out the second time, and for the trial below, another attempt was not made to find the witness. The reason for this, however, was given by Hileman in the testimony just quoted. It would be clearly insufficient in the case of a witness who had a known residence in the county, but it is different in the case of a witness, such as Regan, who had no fixed residence, and who was probably shifting about from place to place, as he could find a job of work to do. Where was the defendant to go to find such a man ? He might inquire of every man in Luzerne county, and not find him. There was no chart to go by, no clue, and no point at which to begin. We think, under such circumstances, the court below held too strict a rule, and that the execution of the paper in question should have been proved by secondary evidence.

We also think it was error to refuse to permit J. B. Shiffer, the grantee, mentioned in the paper in the first specification, to testify who owned the houses described in said paper. See sixth specification. The fourth specification raises substantially the same question, although in a different form.

The houses in question were personal property. They had been built upon a leasehold; the lease had expired, and they were to be removed. The defendant contended that the plaintiff had sold the houses to J. B. Shiffer. The court below refused to permit Shiffer to prove that he had bought the houses, or, to use the exact language of the specification of error, “ to testify who owned the houses in said paper.” The ground of this refusal appears to have been that the sale was evidenced by a writing. It is very true that, in establishing title to real estate, the deed or writing is the best evidence, and must ordinarily be produced. This was not such a proceeding, however. It related merely to the ownership of personal property. Surely, a man may testify that he is the owner of a horse, although he may hold a bill of sale as the evidence of his title. We think the evidence should have been admitted.

This view of the case renders it unnecessary for us to discuss the question, whether a paper may be proved by calling the party who executed it, instead of placing the subscribing witnesses on the stand, or accounting for their absence.

The judgment is reversed, and a venire facias de novo awarded.