
    (53 South. 528.)
    No. 18,371.
    SCIORTINO v. BANK OF WHITE CASTLE. In re SCIORTINO.
    (Oct. 31, 1910.)
    
      (Syllabus by the Court.)
    
    1. Judgment on Rehearing.
    The judgment on rehearing was rendered and filed days after the 1st of June.
    2. Certiorari (§ 40*) — Time eor Application —Dismissal.
    Thirty days had not elapsed after the judgment had been rendered and filed to the date that relator’s application was filed in the clerk’s office of the Supreme Court.
    [Ed. Note. — Por other cases, see Certiorari, Cent. Dig. § 58; Dec. Dig. § 40.*]
    3. Judgment oe District Court.
    The judgment of the district court held that the preponderance of the evidence was with defendant.
    4. Decision Affirmed.
    The decision was affirmed by the Court of Appeals.
    5. Banks and Banking (§ 154*) — Payment oe Forged Check — Sufficiency oe Evidence.
    A careful review of the evidence, as stated by the Court of Appeals (the relator produced no other), has resulted in convincing this court that plaintiff did not have good ground of action.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 502-533; Dec. Dig. § 154.*]
    6. Review on Appeal.
    The questions of law were with defendant.
    7. Correct Judgment.
    The judgment is correct and legal.
    Action by S. Sciortino against the Bank of White Castle. Judgment for defendant was affirmed by the Court of Appeal, and plaintiff applies for certiorari or writ of review.
    Motion to recall and dismiss the preliminary order overruled, and application denied.
    A. L. Grace, for applicant. C. S. Hebert, for respondent.
   On Motion to Recall and Dismiss the Preliminary Order.

BREAUX, C. J.

The court holds that the decision on rehearing having been rendered and signed on June 1, 1910, at Covington, in the parish of St. Tammany, it was not possible to file it on the 1st day of July, 1910. The distance between the two places, Covington and Plaquemine, was too great to permit of such filing on the day last mentioned.

The decision must have been filed later than on the last-mentioned day.

The number of days later is not anywhere stated in the record, although there is a notice, which was recently sent here, signed by the clerk of court, to show that it was filed on the 3d day of June.

It not being made to appear in a legal manner that the 30 days had elapsed from the date of filing by the clerk of the Circuit Court of Appeal to the date that the application for the writ was filed in this court, the application to dismiss is overruled.

The Evangeline Case cited by applicant, 52 South. 388, 126 La. 243 (No. 18,173), is not pertinent. The facts were different.

In the cited case it abundantly appeared that the 30 days had elapsed.

Motion to recall the preliminary order is overruled.

On the Merits.

The applicant, Sciortino, alleged that the defendant bank negligently paid a check on which his name was forged for the sum of $325, which it paid from his funds on deposit.

He instituted suit against the bank to recover judgment for the amount.

The bank answered, alleging that the cheek was not forged; that the signature to the check was a genuine signature.

The only issue was forgery vel non. The court of first instance and the Court of Appeal confined the inquiry to that point.

The ruling finds ample support in Code Prac. arts. 324, 325, and in Smith v. Union Sawmill Co., 120 La. 599, 45 South. 519.

The judge of the district court, who heard the witnesses, observed their manner of testifying, was acquainted with them, and had the opportunity at first hand, held that the signature was not a forgery.

On appeal to the Court of Appeal that court said among other things: That plaintiff did not positively deny the correctness of the signature: “S. Sciortino, per J. S.” It was that used in his dealings, and that he personally never had drawn checks.

That all his checks were drawn by his young son, Joseph, 16 years of age.

The court found similarity between this check and the other checks drawn as just mentioned in the usual course of business.

The court also found as a fact: That defendant received other checks of plaintiff similarly signed and paid them.

That the president of defendant bank received the checks of plaintiff through the mail, including the present check which he received through the mail. That it was paid on December 7, 1908 by defendant’s check on the National Park Bank of New York City in favor of the German Insurance Bank.

The court relates as a fact that plaintiff testified that he had not signed the check in question, nor authorized any one to sign it. But in reply to the question, “Did you sign that check yourself?” he said, “No, sir; my son signed it.”

Subsequently he changed this statement, and swore that his son had not signed it.

No question but that plaintiff’s son had authority to sign plaintiff’s name to checks on the bank, written as before stated.

The court noted in the decision that it was remarkable that plaintiff never testified that the signature is not his signature, but always testified “that the signature was not his signature, but always said that he never gave the cheeks, never signed it; that Joe did not sign it.”

Considerable other testimony of the father and son is noted, which we summarize as follows: A traveling salesman, an Italian, sold plaintiff a bill of goods November 24, 1908 (this salesman was a stranger to father and son), amounting to $445, for which plaintiff executed three notes in equal amounts, payable within three months.

The son signed the usual signature, “S. Sciortino, per J. S.”

The plaintiff did not testify that he saw what was written in the notes, or that he read them at any time.

The son was the only witness as relates to these notes, and it appears that whatever he signed was written by the salesman, in a manner and under circumstances, that did not impress the district court.

Against the testimony of plaintiff, the president of the defendant bank testified that from his familiarity with the signature, past dealing with the parties, and by comparison that the signature is genuine. He was positive.

J. E. Dunlap, another bank president, testified to about the same effect; also, James M. Rhorer, deputy clerk of court, C. A. Barker, Sr., a bank cashier.

The district judge was not controlled by these witnesses. Temple v. Smith, 7 La. Ann. 562. He in the exercise of judicial discretion arrived at the conclusion before stated, which was affirmed.

This, court has again and again decided that it would accept the facts found by the Court of Appeal as correct, particularly if the applicant failed to show in support of his case that they were in any way erroneous.

We have noted that the only questions here are of facts.

The applicant has not produced a scintilla of evidence other than that found by the Court of Appeal, which we have reviewed above.

We therefore recall the order nisi, dismiss applicant’s petition, and deny his demand.  