Biggs v. Gurganus

• Decision Date: 16 March 1910
• Citation: 152 N.C. 173,67 S.E. 500
• Parties: BIGGS v. GURGANUS.
• Court: North Carolina Supreme Court

67 S.E. 500

152 N.C. 173

BIGGS

v.GURGANUS.

Supreme Court of North Carolina.

March 16, 1910.

1. Appeal and Error (§ 958^*)—Demurrer-Rulings of Court — Pleadings — Amendment.

Allowing amendments is generally within the sound discretion of the court, and is not reviewable on appeal.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3824; Dec. Dig. § 958.*]

2. Boundaries (§ 36*)—Evidence—Admissibility.

In processioning proceedings, a timber deed of defendant in the handwriting of M. but signed by no one held inadmissible; M. not testifying in the case so that it might be used to corroborate or contradict his testimony.

[Ed. Note.—For other cases, see Boundaries, Cent. Dig. § 100; Dec. Dig. § 36.*]

3. Trial (§§ 257, 259*) — Instructions — Requests.

Special instructions must be in writing and requested before argument.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 643, 648; Dec. Dig. §§ 257, 259.*]

4. Trial (§ 312*)—Instructions—After Submission of Case to Jury.

Where a juror without the knowledge of the court took to the jury room deeds introduced in evidence by defendant, from which plaintiff's counsel read during argument and requested the jury to take and consider carefully in making up their verdict, and, after remaining in conference for four hours, the jury asked if they must be governed by the deeds alone, it was proper for the court to then instruct that they consider the entire evidence and not the deeds alone, and that they should not take the deeds with them into the jury room, since the judge thereby sought to correct the error of the deeds being taken to the jury room.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. § 312.*]

5. Trial (§ 312*) — Instructions — Time of Giving—Absence of Party.

Where the jury in a civil suit, after conferring for some time, requested further instructions, the giving thereof by the court in the absence of plaintiff and his counsel was not error; since, while it is the privilege of civil suitors and their counsel to be present during trial, it is not obligatory, and their absence will not invalidate the proceedings.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 745; Dec. Dig. § 312.*]

Appeal from Superior Court, Martin County; O. H. Allen, Judge.

Processioning proceedings by S. S. Biggs against David Gurganus. From a judgment for defendant, plaintiff appeals. Affirmed.

This issue was submitted to the jury without exception: "Which is the correct line between the parties—from the figures 1 to 2, and from 2 to 3, or from 1 to C, and from C to D? Answer. From 1 to C, and from C to D."

Winston & Everett and A. R. Dunning, for appellant.

Harry Stubbs and Martin & Critcher, for respondent.

BROWN, J. An examination of the record convinces us that the criticisms which have sometimes been made upon processioning proceedings are not merited as to this. It would be difficult to conduct such a proceeding more in accordance with the letter and spirit of the statute than has been done in the conduct of this by counsel for both parties, and as so conducted it is hard to conceive of a simpler or more expeditious manner of locating and establishing a division line between two tracts of land.

The petitioner sets out his entire boundary, and describes the division line as contended for by him. The defendant admits that the petitioner owns the land described, "except that portion embraced in the description of the land as claimed by defendant, " and then sets out the boundary line as claimed by him. Thus the controversy arises as to where the boundary line is, and not what it is. The two boundary lines are delineated on the platand embodied in the issue. The jury located it as claimed by defendant.

The record contains seven assignments of error, the last two merely formal. No. 1, first exception, in allowing defendant to amend answer. No. 2, second exception, in admitting oral evidence of agreed line. No. 3, third exception, in not admitting timber deed of defendant. No. 4, fourth exception, refusal of instructions. No. 5, fifth exception, instruction to the jury in absence of plaintiff and the instruction itself. No. 6, sixth exception, overruling motion for new trial. No. 7, seventh exception, to the judgment.

The first exception cannot be sustained, as it is well settled that amendments are generally within the sound discretion of the trial judge. There are cases which hold that a new and different cause of action cannot be thus introduced, but they have no application here. We find only one exception in the record to the evidence, and that is assignment of error No. 3. The record states that this paper writing was in the handwriting of Wheeler Martin, but was not signed by any one. We fail to see how it can be competent evidence in any view...