Olive v. Olive

Citation95 N.C. 485
CourtUnited States State Supreme Court of North Carolina
Decision Date31 October 1886
PartiesA. T. & J. C. OLIVE v. H. C. OLIVE.

OPINION TEXT STARTS HERE

CIVIL ACTION tried before Clark, Judge, at February Civil Term, 1886, of WAKE Superior Court.

The defendant appealed.

The facts are stated in the opinion.

Mr. A. M. Lewis, for the plaintiff .

Mr. D. G. Fowle, for the defendant .

SMITH, C. J.

This action was commenced in a justice's court, (and removed by defendant's appeal to the Superior Court), to recover the sum of $148 85/100, claimed to be due from the defendant.

The single issue submitted to the jury was: “Is the defendant indebted to the plaintiff; and if so, in what amount?”

The answer returned was: One hundred dollars, with interest from 22d November, 1881.

Judgment being rendered against the defendant, he appealed.

To support their contention, the plaintiffs read in evidence a mortgage, in the usual form of crop liens, executed by one E. Ferrall, conveying the crops to be raised on the lands “known as Kendrick Johnson's land, now owned by Pennina Mills,” and proved that they furnished provisions to him to the amount of $150 15/100 under the deed, and that in the Fall of the same year, they took into their possession, of the crops raised by Ferral, 3,248 pounds of seed cotton. This cotton was subsequently seized under an attachment issued at defendant's instance, and sold, and the proceeds paid over to him. The plaintiffs' mortgage was dated and registered on the 17th day of January, 1881, while Rand & Barbee had a lien upon the entire crops of an earlier date, and the defendant said he claimed under a lien created by Pennina Mills. The plaintiff here rested, and defendant asked the Court to direct the jury to render a negative response to the issue. At the same time, the plaintiffs asked permission to re-open their case for the introduction of further testimony. This the Court allowed, and denied the defendant's motion. To this ruling the first exception is taken.

I. The exception is untenable, and the action of the Court was but an exercise of that discretion reposed in him by law, in order to a fair trial and the attainment of the ends of administering justice. Pain v. Pain, 80 N. C., 322.

The examination of witnesses may be allowed in the discretion of the presiding Judge at any stage of the trial in furtherance of justice. State v. Lee, 80 N. C., 483; State v. King, 84 N. C., 737.

The plaintiff thereupon put the defendant on the stand, and proved by him that he had received $100 of the proceeds of sale of that cotton, besides $25 from Rand & Barbee, the excess received by them over the amount due on their mortgage. On his cross-examination his counsel offered in evidence a mortgage dated March 24th, 1881, made by Pennina Mills and said Ferrall to him, and stated that he proposed to show that it covered the crops grown on the same land and now claimed by the plaintiffs.

The Court refused to receive the evidence at this stage of the case, as the plaintiffs had not closed, but that it would be admitted, and the witness recalled for that purpose, when the defendant put in his proofs.

II. The defendant's second exception is to this action of the Court. We find no error in the refusal to allow this substantive evidence in defence, to be interjected in the course of the examination of the plaintiffs' witnesses, and no just right was denied to him.

In practice, it is common to prove handwriting, and thus the execution of an instrument in writing by a subscribing witness, or witness acquainted with the handwriting, upon cross-examination, to the end that it may be read to the jury, or proved, at the proper time for its introduction as affirmative evidence of the party. And it is not in evidence until read or accepted, though by such preliminary examination put in condition to be read. But this is rather a convenience than right, since a controversy may spring up as to the authenticity of the instrument, and at an inopportune time. There is no error in the course pursued by the Court, and no just cause of complaint afforded the appellant.

III. The defendant then offered the record of a trial of an action brought before a justice of the peace by himself, against said Ferrall and Mills, in which it was adjudged that the $100 now claimed, be paid over to the defendant, and it was so received by him. The evidence was not received, as we understand, because offered before the plaintiffs' testimony was concluded, as was the other. But both the mortgage and record of the trial were subsequently received and heard by the jury, so that no detriment could come to the defendant from the ruling of the Court, had it been, as we hold it was not, erroneous to exclude it when an opportunity offered.

IV. The next exception is to the refusal of the Court to allow the defendant's counsel to recall him and examine him as the plaintiffs' witness. We do not feel the force and pertinency of the proposition.

The defendant had been made a witness for the plaintiffs, and his credibility was not open to an attack of those introducing him. His testimony would come before the jury with the same claims to their confidence, whether called in the second examination the witness of one or the other party. It does not appear he was recalled, and if he was, that any exigency occurred in which the discretion became important. As we cannot see what harm could come from calling the defendant his own or the plaintiffs' witness, the exception is overruled.

V. The evidence in defence consisted in--

1. A mortgage made by Ferrall to Rand & Barbee on October 15th, 1880, covering the same crops on which $25 was advanced after October 17th, 1881, the mortgage being for advances to the amount of $400 to be made.

2. A mortgage on same crops made by Ferrall and Mills to himself, registered on March 24th, 1881, to secure advances to the amount of $100.

3. The proceedings...

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13 cases
  • State v. Tilley
    • United States
    • North Carolina Supreme Court
    • January 15, 1954
    ...examines the adverse party as a witness at the trial of the cause. Helms v. Green, 105 N.C. 251, 11 S.E. 470, 18 Am.St.Rep. 893; Olive v. Olive, 95 N.C. 485; Strudwick v. Brodnax, supra. But a party does not make his adversary his witness by taking his adverse examination before the trial, ......
  • Hildebrand v. United Artisans
    • United States
    • Oregon Supreme Court
    • September 3, 1907
    ... ... error of the court in refusing on cross-examination to admit ... the "proof papers" in evidence. Olive v ... Olive, 95 N.C. 485; City of Chicago v. Peck, ... 196 Ill. 260, 63 N.E. 711; Seymore v. Malcolm McD. L ... Co., 58 F. 957, 7 ... ...
  • Sutton v. Walters
    • United States
    • North Carolina Supreme Court
    • March 31, 1896
    ...witness. The permission of the court to recall a witness after the evidence closed was a matter of discretion in the judge. Olive v. Olive, 95 N.C. 485; Pain v. Pain, 80 N.C. 322; State v. King, 84 N.C. 737. It is for this very reason that additional evidence should be called if obtainable,......
  • Sain v. Baker
    • United States
    • North Carolina Supreme Court
    • May 14, 1901
    ...afterwards introduced the said will. The defendants could not have introduced the will, on cross-examination, In evidence. Olive v. Olive, 95 N. C. 485. The second exception was abandoned. Daniel Leonhardt died in 1860, and by his will, bearing date the same year, he devised the first three......
  • Request a trial to view additional results

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