Opinion
SC 1427.
December 18, 1975.
Appeal from The Circuit Court, Covington County, F. M. Smith, J.
Cook Cook, Andalusia, for appellant.
Samples of handwriting, to be suitable for comparison purposes, must first be admitted or properly proved and in evidence. Title 7, Section 420, Code of Alabama; Rule 44, A.R.C.P.; Griffin v. Working Woman's Home Ass'n, 151 Ala. 597, 44 So. 605; Bryant v. DeKalb Warehouse Co., 260 Ala. 443, 71 So.2d 51; Mutual L. I. Co. v. Witte, 190 Ala. 327, 67 So. 263. A non-expert on handwriting would have to have seen the person write or have received correspondence from the person and acted on it to be able to testify to that person's handwriting. Gibson v. Trowbridge Furniture Co., 96 Ala. 357, 11 So. 365; Griffin v. Working Woman's Home Ass'n, 151 Ala. 597, 44 So. 605. Where forgery is alleged the party asserting the forgery must prove that the alleged signer not only did not sign the document but also that the alleged signer did not authorize anyone else to sign the document. Owens v. State, 16 Ala. 413, 78 So. 423; Matthews v. Lamb, 84 Nev. 649, 446 P.2d 651; U.S. v. Gilbert, 140 U.S.App.D.C. 66, 433 F.2d 1172; U.S. v. Gilbreath, 5 Cir., 452 F.2d 992.
Albrittons Rankin, Andalusia, for appellee.
Determination of expert's competency rests in trial court's sound discretion which will not be disturbed except for palpable abuse. Kirby v. Brooks et al., 215 Ala. 507, 111 So. 235. Where the case is tried by the Court without a jury, its conclusions or findings on evidence given ore tenus have the effect of a jury verdict. Pugh v. Cannon, 266 Ala. 97, 94 So.2d 386.
Appeal from judgment of the Circuit Court of Covington County holding a mortgage void because the signature of the mortgagor Pinkie (Pinkey) Sutton or Pinkie (Pinkey) Sutton Brown was a forgery. We affirm.
Appellant is J. C. Gissendaner, the assignee of the mortgage. Appellee is Joseph H. Proctor, Administrator C/T/A of the Estate of Pinkie Sutton, deceased, the mortgagor.
The pertinent facts are: Proctor sought to prevent Gissendaner from foreclosing a mortgage allegedly executed by Sutton on real estate which is the only substantial asset of her estate. The case was tried by the Circuit Court sitting without a jury.
Proctor contended the signature of Pinkie Sutton was a forgery and therefore the mortgage should be declared void. Examples of Pinkie Sutton's signature were properly introduced into evidence and considered by the trial court. An objection to the qualifications of a bank officer to compare Sutton's signature on the mortgage with Sutton's signature on other documents was insufficient. Kirby v. Brooks, 215 Ala. 507, 111 So. 235 (1927).
The evidence pertaining to the authenticity of the signature on the mortgage was conflicting. The trial court heard and saw the witnesses, viewed examples of the signature and found the signature on the mortgage to be a forgery. That decision will not be disturbed on appeal. Eubanks v. Richards, 294 Ala. 30, 310 So.2d 883 (1975).
Affirmed.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.