
    Atley v. Atley, Exr., et al.
    
      Evidence — Privilege of witnesses — Section 1H95, General Code —Action against executor and heirs on note of decedent— —Plaintiff may be called for cross-examination by defendant heirs, when — Burden of proving alteration of note on defendant — Charge to jury — Presumption that alteration made before or at execution of note.
    
    1. In action against executor and heirs of deceased on note executed by deceased, claim on which had been rejected under Section 10724, General Code, held that, as heirs were necessary parties under Section 10725 and had right to make same defense that executor could make, where executor did not actively participate in trial, court properly permitted heirs to call plaintiff as on cross-examination, notwithstanding Section 11495.
    2. Where defendant, sued on note, claims that it has been altered since its execution and delivery, he has burden of proving that it was so altered, as presumption is, in absence of anything to contrary, that any alteration appearing on face of note was made at or before time of its execution. ,
    3. In action on note, wherein defense was that note had . been altered after its execution and delivery, charge held erroneous as failing to call attention to presumption that alteration was made at or before its execution, and misleading in stating, “if some change was made in note then plaintiff cannot recover,” where there was no doubt that change had been made in note.
    [1] Witnesses, 40 Cyc. p. 2472; [2] Alteration of Instruments, 2 C. J. §§ 179, 192; [3] Id., 2 C. J. §192; Trial, 38 Cyc. p. 1603.
    (Decided June 22, 1925.)
    Error : Court of Appeals for Clinton county.
    
      Mr. C. W. Swaim, for plaintiff in error.
    
      
      Messrs. Smith, Rogers & Smith and Messrs. Doan S Cartwright, for defendants in error.
   Cushing, J.

Nelia Atley brought an action against C. Allen Atley, as executor of the estate of Evaline Atley, deceased, Elia Garber, Ellen Drake, Rebecca A. Stotler, and Effie Sprague, to recover on a promissory note executed by Evaline Atley, dated April 25, 1922, and due in one year from its date, with interest at 4 per cent. The plaintiff and defendants were brothers and sisters, children of Evaline Atley.

• It is claimed by some of the defendants that the note was changed by increasing the amount from $195 to $3,195. There was a credit of $195 indorsed on the back of the note.

The case was tried to a jury. It returned a verdict for the defendants. Nelia Atley prosecutes this action to reverse the judgment entered on that verdict.

One of the assignments of error was the calling of Nelia Atley as a witness. The executor did not actively participate in the trial. The other defendants called Nelia Atley as on cross-examination, and examined her as to the execution and delivery of the note and as to the consideration she gave her mother for it. The claim when presented was allowed, and afterwards rejected, as required by Section 10724, General Code.

Elia Garber and the other defendants were necessary parties to the action under Section 10725, General Code, which provides that such defendants shall have a right to plead and make any defense that the executor or administrator could make. In Roberts v. Briscoe, 44 Ohio St., 596, 10 N. E., 61, it was held that in an action against an executor or administrator, on a claim that has been disallowed, such executor or administrator may call the opposite party as a witness.

Section 11495, General Code, prohibiting a party from testifying when the adverse party is an executor, administrator, etc., does not apply when the executor or administrator calls such party as a witness. The question here is whether defendants, other than the administrator or executor, may call on opposite party, the same as an executor or administrator. Section 10725, General Code, provides that in such action, such heir, creditor, or other person shall be made a party defendant with the administrator and executor. If they are necessary parties and have a right to make the same defense that the executor or administrator could make, it follows that they would have the same authority to call witnesses that the executor or administrator was given under the law. So that the trial court did not err in compelling Nelia Atley to testify when called by the defendants.

The question of fact in this case was whether or not the note in question had been altered or changed after its execution and delivery. There was much evidence adduced at the trial that the note had been changed. Several witnesses testified that there had been erasures and tracing. There was testimony that the note was written with a pale ink and afterwards traced with a darker ink. The witness who gave this testimony, when asked to give his judgment as to which ink appeared to have been used in the signature of Evaline Atley, said: “It is rather difficult to be positive, but it has the appearance of being darker ink.”

The court in its charge to the jury stated: “Upon the issues, the defendants have the burden of establishing by a preponderance of the evidence, as defined, these facts: (1) That the amount originally payable in the note has been changed; (2) that such change occurred after the execution and delivery, and without the consent of Evaline Atley. * * * If the defendants have established by a preponderance of the evidence some change, as defined, in the amount payable in said note, then the note is void, and the plaintiff cannot recover thereon even if the original amount was legitimate.”

This does not correctly state the rule of law in such cases.

Where it is claimed by a defendant in an action on a promissory note that the note has been altered since its execution and delivery, the burden is upon him to prove it was so altered; the presumption being, in the absence of anything to the contrary, that any alteration appearing on the face of the paper was made at or before the time of its execution. Franklin v. Baker, Exr., 48 Ohio St., 296, 27 N. E., 550, 29 Am. St. Rep., 547.

The court, in its charge, not only failed to call the jury’s attention to this presumption, but its charge, last above quoted, was misleading, in that it stated: “If some change was made in the note, then the plaintiff cannot recover.” There was no doubt that a change had been made in the note, but the question whether it was made prior to or at the time of its execution was not submitted to the jury; nor was plaintiff given the benefit of the presumption of law that such change was made at or before the execution and delivery of the note.

Our conclusion is that there was error in the court’s charge, prejudicial to the plaintiff in error, and for that reason, as well as for the further reason that on the record the judgment based on the verdict of the jury is manifestly against the weight of the evidence, the judgment will be reversed.

Judgment reversed and cause remanded.

Buchwalter, P. J., and Hamilton, J., concur.  