Smith v. Vaughn

The suit was originally brought in the justice court, where recovery was sought on a promissory note. From a judgement for plaintiff in that court, defendant appealed to the circuit court, where the trial was had de novo, by the judge without a jury. In the circuit court plaintiff was allowed, over the objection of defendant, to amend the complaint by adding the common counts for money loaned, but it will be unnecessary to notice the objection to this, because the final judgement of the court was upon the count declaring on the note, and no evidence was introduced authorizing a consideration of any other count. Beside the addition of a count claiming for money loaned, growing out of the same transaction, is not a departure.

Under section 1 of the Code of 1907, signature includes mark when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness. There was evidence to the effect that defendant made her mark, and the note was witnessed by Edna I. Vaughn, the wife of the payee. This was a sufficient attestation, and, if the defendant could not write, was signature as defined by the statute. Johnson Co. v. Davis, 95 Ala. 293, 10 So. 911. There being evidence that the defendant made her mark to the note, if she could write, such was an adoption of the mark as her signature. These were questions of fact for the trial court, trying the cause without a jury, with every presumption to be indulged by this court as to their correctness.

It was also a question of fact as to whether the debt was that of the husband or wife.

We find no error in the record, and the judgement is affirmed.

Affirmed.