
    No. 549
    CAMPF v. CAMPBELL et
    No. 19809.
    Supreme Court
    On motion to certify.
    Dock. May 7, 1926.
    147. BILLS AND NOTES — In a suit upon a promissory note, where the answer filed denies consideration for said note, is the burden of proof upon the plaintiff to prove consideration or is it presumed until a failure thereof is proved?
    Attorneys — K. L. Cob'ourn, for Campf; Boone & Campbell, Salem, Billingsly & Moore, Lisbon, for Defendants.
   B. Frank Campbell and. T. Campbell brought this action originally before J. A. Woodward, a justice of the peace of Salem township, Columbiana County against James Campf on a promissory note. The justice rendered judgment in favor of Campf and upon appeals to the Columbiana Common Pleas judgment was rendered for Campbell, which judgment was affirmed by the Appeals.

During the pendency of the action Helen C. Robb, Guardian of B. Frank Campbell and Louis S. Campbell and Helen C. Robb executors of T. Campbell were made party defendants as personal representatives of the party litigants.

At the trial of the case the genuineness of the signature on the verification contained in the answer was admitted and thereupon the answer was offered in evidence and the court was requested to wait until a witness arrived to compare the signatures. Thereupon the court directed the defense to proceed, but the defense stated that until the signatures were compared there was no defense to interpose. The plaintiffs then rested, without offering any witness and the defense also rested, whereupon the court upon motion directed a verdict for the plaintiffs, the Campbells. The judgment of the Common Pleas was affirmed by the Appeals. Campf in the Supreme Court contends:

1. That the court should not have directed a verdict until an opportunity had been given to the defendant to withdraw his motion for a directed verdict (both parties had moved the court for a directed verdict).

2. That neither the court nor jury could act in place of hand writing experts without evidence of samples of writing.

3. That the burden of proof concerning the consideration for the note was upon Campbell because the denial of the consideration in the answer overcame the statutory presumption of consideration and that therefore judgment should have been rendered for Campf.  