On Motion for Rehearing. Appellee, who presented no brief on original hearing, now urges that we erred in reversing and rendering judgment, because, he insists, in the face of his verified plea of non est factum, the note itself was inadmissible to prove its execution, and that, further, there is no evidence in the record establishing, or tending to establish, such execution. While the plea of non est factum filed by defendant below is hardly in compliance with the statutory requirements (article 1906, subd. 8, V. S. Texas Civil Statutes), yet, in the absence of any objection thereto in the trial court, it may be considered as regular in form. But the interposition of said sworn plea merely puts the plaintiff on proof, aliunde the instrument itself, of its execution. But when the plaintiff has made a prima facie showing as to the execution, then the burden of proof rests upon the defendant, who relies upon the claim that the signature to the instrument was not in fact made by him or under his authority, or that there has been a material alteration of the instrument since it was executed to establish such defense.
The presumption is that documents regular on their face have been duly executed. 1 Jones on Evidence, § 50, p. 247. The verified plea of nonexecution is not evidentiary in character, but merely robs the instrument involved, purporting to be executed by the party sought to be charged, of its own probative effect to establish its execution. But when, aliunde the instrument itself, the plaintiff makes out a prima facie case as to the execution, it devolves upon him who would deny it to overcome the prima facie showing. In this case, the plaintiff introduced the note, without objection apparently for all evidentiary purposes for which it was admissible. He further introduced, also without objection, the order signed by the defendant, referring to this note. He further introduced the letter set out in our original opinion, in which the defendant referred to the order, without disputing or denying its execution or validity. The execution of the order and the note constituted one transaction. Hence we are of the opinion that the plaintiff made out a prima facie showing as to the execution. There is an absolute absence of any evidence to overcome this prima facie showing. It therefore became the duty of the court to determine this issue in favor of plaintiff.
As to the claimed alteration of the instrument by reason of its detachment from the order, we have sufficiently discussed that feature in our original opinion.
The motion for rehearing is overruled.
CONNER, C.J., not sitting, serving on writ of error committee at Austin.