Commercial Bank v. Burgwyn

• Court: North Carolina Supreme Court
• Writing for the Court: MONTGOMERY, J.
• Citation: Commercial Bank v. Burgwyn, 21 S.E. 202, 116 N.C. 122 (N.C. 1895)
• Decision Date: 19 March 1895
• Parties: COMMERCIAL BANK OF DANVILLE v. BURGWYN.

21 S.E. 202

116 N.C. 122

COMMERCIAL BANK OF DANVILLE v. BURGWYN.

Supreme Court of North Carolina

March 19, 1895

Appeal from superior court, Vance county; Shuford, Judge.

Action by the Commercial Bank of Danville against W. H. S. Burgwyn. From a judgment for plaintiff, defendant appeals. Reversed.

Exceptions to questions in depositions which had been admitted without objection in two previous trials of the same case were properly overruled.

Pittman & Shaw, R. B. Peebles, and John W. Hinsdale, for appellant.

J. B Batchelor and J. W. Graham, for appellee.

MONTGOMERY J.

After hearing thorough argument, and making a painstaking examination of the pleadings and the testimony, we are unable to discover any material difference in any aspect between the case presented at this term of the court and the one heard and determined at February term, 1892, and reported in 110 N.C. 267, 14 S.E. 623. The opinion delivered in that case for the court, by Justice Shepherd, renders it unnecessary for us to go over the ground again. It is true, however, that when the case was last tried, at Vance superior court objection was made (for the first time) by the defendant to each and every question in the depositions in the case which went to connect the Southern Electric Light Company with the notes, either as indorser or indorsee. But these depositions had been offered in evidence by the plaintiff on two former trials of this action, and no objection was made on said first two trials, and no objection was made and noted at the time said depositions were taken, nor at the time they were opened by the clerk. The court properly overruled the exceptions. Carroll v. Hodges, 98 N.C. 418, 4 S.E 199. Also, at the last trial there was suggestion of a variance between the complaint and the evidence. In the two former trials this suggestion was not made, and upon inspection the variance in its nature is...