Hall v. Holloman

• Decision Date: 20 September 1904
• Citation: 48 S.E. 515,136 N.C. 34
• Court: North Carolina Supreme Court
• Parties: HALL v. HOLLOMAN.

48 S.E. 515

136 N.C. 34

HALL

v.HOLLOMAN.

Supreme Court of North Carolina.

Sept 20, 1904.

PARTY AS WITNESS—CODE—DISQUALIFICATION.

1. In an action by an administratrix to recover against defendant for the amount of certain notes alleged to have been fraudulently retained by defendant after delivery thereof to him by deceased, the admission of testimony of the husband of the administratrix, not a party to the suit, as to the conversation between deceased and defendant at the time the notes were delivered, does not render admissible the testimony of defendant concerning the conversation, under Code, § 590, removing the common-law disability of witnesses by reason of interest, but inhibiting parties from testifying in their own behalf concerning a personal transaction between the witness and the deceased except where the executor, administrator, etc., is examined in his own behalf, or the testimony of the deceased person is given in evidence.

Appeal from Superior Court, Hertford County; Councill, Judge.

Action by Susette Hall, administratrix of the estate of Emma Butler, deceased, against Robert Holloman. From a judgment for defendant, plaintiff appeals. Reversed.

Winborne & Lawrence and Francis D. Winston, for appellant.

Geo. Cowper, D. C. Barnes, and L. L. Smith, for appellee.

CLARK, C. J. It is alleged in the complaint, and not denied in the answer, that Emma Butler, the plaintiff's intestate, an ignorant colored woman, held two notes executed by the defendant—one for $1,000, and the other for $700. The plaintiff alleges that the said Emma carried the notes to the defendant to calculate the amount due on the same and for payment; that the defendant, claiming to be busy, told her he would make the calculation and come down and pay her, retaining the notes, but that he has never done so. The defendant denies this, and contends that he paid off the notes in full, and, having thus obtained possession of the notes, he has since destroyed them. Two witnesses, Keen and Hall—the latter the husband of the plaintiff, administratrix, and not a party to the action—testified to the conversation between the deceased and thedefendant at the time the notes were left with the defendant. Thereupon the court permitted the defendant himself to testify as to the conversation between himself and the deceased, over the plaintiff's exception. In this there was error. The Code removes generally from witnesses the common-law disability by reason of interest, but excepts (section 590) "parties * * * testifying in their own behalf concerning a personal transaction * * * between the witness and the deceased." See Bunn v. Todd, 107 N. C. 266, 11 S. E. 1043, where section 590 is analyzed. There is this exception to the disqualification still retained by section 590 in the above cases: "Except where the executor, administrator, " etc., "is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication." Death having closed the mouth of the deceased, the law, as heretofore, closes the mouth of the other, except only where the personal representative of the deceased opens the matter by testifying himself, or putting in the testimony of the deceased. This means the testimony of the deceased, as his deposition de bene esse, or. evidence of his testimony at a former trial, and not merely testimony for the plaintiff by competent witnesses, as in this case. Else the statute, instead of the words used, would have simply made the defendant competent "whenever any evidence of the personal transaction * * * is introduced in behalf of the plaintiff administrator or executor."...