Brown v. Town of Hillsboro

• Citation: 117 S.E. 41,185 N.C. 368
• Decision Date: 11 April 1923
• Docket Number: 332.
• Parties: BROWN v. TOWN OF HILLSBORO.
• Court: North Carolina Supreme Court

117 S.E. 41

185 N.C. 368

BROWN v. TOWN OF HILLSBORO.

No. 332.

Supreme Court of North Carolina

April 11, 1923

Appeal from Superior Court, Orange County; Connor, Judge.

Action by N.M. Brown against the Town of Hillsboro. Judgment for defendant, and plaintiff appeals. No error.

It was proper for the court to tell the jury that they must find the facts from the evidence and not from what counsel or the court had said during a controversy.

C. D Turner, of Hillsboro, for appellant.

A. H Graham and Gattis & Gattis, all of Hillsboro, for appellee.

WALKER J.

In view of the discrepancies between the alleged statement of facts in appellant's brief and the summary of exceptions, and the exceptions in the statement of case on appeal, as settled by the judge, we deem it proper to make the following preliminary explanation:

The governing body of the town of Hillsboro, on the 28th of August, 1922, passed the bond ordinance in question, which was to be submitted to the qualified voters of the town at an election to be held 10th of October, 1922. Before said election was held plaintiff brought this action to restrain the holding of said election. At the hearing of the matter at chambers, plaintiff abandoned his request for an order restraining the holding of the election, and was granted permission to file an amended complaint; and the election for which a new registration of qualified voters was had, totaling 399 names, was duly held on the 10th day of October, and at this election 290 votes were cast in favor of said bond ordinance, and 7 votes were cast against it. Plaintiff filed an amended complaint, seeking to prevent the proposed issue of bonds by the town, and to test the validity of a contemplated assessment for local improvements. No bonds have been issued, nor has any assessment been made. After the election, on November 28, 1922, the governing body of the town considered certain petitions filed by property owners, asking for local improvements amounting approximately to $15,000, as shown by the report of the engineer, in accordance with chapter 56, Laws of 1915, and amendments thereto. After careful consideration of these petitions, the board authorized the issuance of bonds in the sum of $60,000, which amount was to cover the street improvements contemplated by the town and the local improvements petitioned for.

Inasmuch as the exceptions contained in appellant's summary of exceptions do not conform to the exceptions shown in the statement of the case settled by the judge, we will have to consider only the exceptions as found in the statement of the case on appeal, and we will take up the exceptions in the order appearing in the record.

Exception No. 1. This matter is in the discretion of the trial court. The motion was based upon defendant's failure to file an answer to the amended complaint and to the leave granted by the court to file an answer during the term. A holding based on Revisal 1905, § 512, now Consolidated Statutes, 536, reads: "The exercise of the discretion of the trial judge in permitting an extension of time to file pleadings is not reviewable on appeal." Baptist Church v. Baptist Church, 158 N.C. 564, headnote 2, 74 S.E. 14. There being no gross abuse of the discretion, in this instance.

Exception No. 2. The genuineness or falsity of disputed handwriting may be proven by testimony of a witness, not an expert, who is acquainted with the handwriting of the person supposed to have written it, either because he had often seen him write, or who had acquired competent knowledge of his handwriting in some other approved manner. Abbott's Proof of Facts (4th Ed.) p. 579, par. 4, and cases cited.

Exception No. 3. The minutes of the board having been introduced in evidence by plaintiff, the court and jury were entitled to hear the full entry in regard to the action taken by the board in the matter. One reason is because without knowledge of the entry the court or jury could not understand what was done. The subject of the validity of corporate acts, and the evidence tending to show it, was considered in Bailey v. Hassell, 184 N.C. 450, 115 S.E. 166.

Exception No. 4. An objection to the reception of evidence is waived if not taken in apt time Johnson v. Allen, 100 N.C. 135, 5 S.E. 666, 26 R. C. L. pp. 1045-6. It is the general rule that an objection to a question asked a witness must be interposed when the question is asked, and before the answer, or the right to have the testimony excluded is waived. Dodson v. Railroad, 132 N.C. 900, 44 S.E. 593. Even if objection had been made in apt time, this evidence was competent for the reasons set forth above under exception number three.

Exception No. 5. The evidence proposed to be introduced was incompetent, because it was hearsay and had no bearing on the issue. Lockhart on Evidence, c. 10, p. 138; King v. Bynum, 137 N.C. 491, 49 S.E. 955. We have cited authorities for this proposition, but it would seem to be unnecessary, as the principle is elementary.

Exception No. 6. The question asked was incompetent, because the petition itself shows that Mrs. Waller had not signed it, and the petition was the best evidence.

Exceptions Nos. 7 and 8. The petition being signed "Merchants' Supply Co., by J. H. Freeland, Business Manager," it was competent for the witness, as president of the corporation, to explain the authority for the signature, which she did by testifying that she instructed him to sign it for the corporation, showing that she not only authorized it, but ratified the action of her agent, who was her brother, in signing the petition.

Exceptions Nos. 9 and 10. The evidence here objected to was elicited by plaintiff from his own witness, in response to his own questions, and there was no objection by plaintiff until the entire testimony, consisting of several sentences, was in. Plaintiff should have moved to strike out the testimony of the witness, which he failed to do. It was in the discretion of the court whether it would strike out the testimony, where objection to it was apparently acquiesced in, and the objection came too late.

Furthermore, the evidence of the witness disclosed that he was, and had been for many years, acting as agent for the heirs of Jas. Webb, Jr., Cox and Browne Webb, and of his mother, Mrs. J. C. Webb; that he transacted all their business with reference to the property in question; that his action in so doing had been indorsed, and ratified, and his agency recognized by them; and, furthermore, that it had been confirmed by acquiescence, and his signatures to the petitions in question, not having been objected to by them, but seemingly recognized and ratified, neither plaintiff, nor any other person, should be heard to question them.

Exception No. 11. The witness, as a member of the firm of H. W. & J. C. Webb, a partnership, had a right to testify that he signed the petition for the firm, in explanation of his act of signing the petition. It appears from the testimony of the witness that this partner signs practically all papers for the firm, in the course of the partnership business, and the other member of the firm not questioning his right to sign it in this case, though called upon to do so, no one else can question it. According to the evidence of the witness, he owned no property as an individual, but only as a member of the partnership.

Exception No. 12. The evidence sought to be admitted was incompetent, irrelevant, and immaterial, and the error, if any, was cured later by the testimony of the witness Arrasmith that he was not present. Appellant makes no contention that the chairman of the board of county commissioners signed the petition before 28th August, 1922, as it was not necessary for the petition of property owners, requesting the making of local improvements, to be filed at the time of the passage of the ordinance, but it is sufficient for the petitions to be filed at any time prior to the issuance of the bonds. This is clearly set forth in section 2941, c. 106, Laws Ex. Sess. 1921.

Exception No. 13. A controversy having arisen between counsel over the health of the town treasurer, the remarks of the court were addressed to statements by counsel on that point. It was manifestly proper for the court to tell the jury that they must find the facts from the evidence, and not from what counsel or the court had said. State v. Foster, 172 N. C., at page 963, 90 S.E. 785. Considering only what the record discloses, this controversy, so far as we can judge of it, hardly reached the proportions of even a "tempest in a teapot"; and though there is not a full statement of it, and some things appear in the briefs which are not clearly stated in the record, we cannot declare the remark of the judge to be error, for it impresses us as one deserving our commendation. A judge is not a mere moderator, or a mere figurehead, but is an essential, and important, part of the court, if not the most important, and should take the lead and direct the course of proceedings, where necessary to orderly procedure in the court. The action of the judge worked no harm to the plaintiff, and it must be said that he does not occupy (figuratively speaking) a position like unto that of "a bump on a log," but is an active agency and expected to assume and retain a commanding position, to keep all things well in hand, as the learned judge, very properly and promptly, did in this case, thereby preventing prejudice to either of the parties; and this is what we not only approve, but commend.

Exceptions Nos. 14 and 15. The tax books for the year 1921 could throw no light upon the amount of taxable property assessed for taxation for the year 1922, which latter is the valuation required by Laws of Ex. Sess. 1921, c. 106, § 2943, subsec. 1 (d),...