Craddock v. Barnes
| Decision Date | 25 September 1906 |
| Citation | 54 S.E. 1003,142 N.C. 89 |
| Parties | CRADDOCK v. BARNES et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Washington County; Shaw, Judge.
Action by H. D. Craddock against Priscilla Barnes and another. From a judgment for defendants, plaintiff appeals. Reversed.
See 53 S.E. 239.
Special proceeding for partition tried before Shaw, J., and a jury upon issues transferred from the clerk. There was evidence for the plaintiff to the effect that the defendant agreed to sell and convey to him a one-half undivided interest in a tract of land for $300, and that in addition to the payment of this sum the plaintiff agreed to give the defendant "a $10 dress and one-half of the pine trees on the land and build a wire fence on her part of the land." That defendant signed and sealed a deed for the one-half interest to the plaintiff and delivered the same to D. E. Woodley upon condition that when the purchase money--that is, the $300--was paid to him (Woodley), he should then deliver the deed to the plaintiff. There was a provision for the application of a part of the money so paid to certain claims and the payment of the balance to the defendant. Plaintiff paid the money to Woodley, and the latter tendered the balance, after reserving enough for the outstanding claims, to the defendant, who refused to receive it and directed him not to part with the deed; but disregarding her instruction, he did afterwards, and under the advice of the plaintiff's counsel, deliver the deed to the plaintiff. The defendant testified that the balance of the $300, after paying the claims, was to be paid to her before the deed was delivered to the plaintiff. Also that all the stipulations as to the purchase money, the dress, the trees, and the wire fence were to be fully performed before delivery. It is stated that, at the close of the testimony "the court at once adjourned" until the next day and at the opening of the court the next morning, and as soon as the judge took his seat on the bench, the plaintiff's counsel tendered in writing certain instructions which he asked to be given to the jury. The judge indorsed on them the following, "Handed up too late," and refused to give or consider any of them. Plaintiff excepted. The court charged the jury as to the law, to which there was no exception, but the charge was not sent up. Upon the issues submitted the jury returned a verdict for the defendant, and to the judgment thereon the plaintiff excepted and appealed.
W. J. Leary, for appellant.
W. M. Bond and H. S. Ward, for appellees.
WALKER J. (after stating the case).
The exception of the plaintiff is well taken. It was stated in the argument before us that the ruling of the court was based upon the assumption that a prayer for special instructions must be submitted "at or before the close of the evidence," under sections 536 and 538 of the Revisal (Code, § § 414, 415). This was erroneous. Section 536 requires that a request to put the charge in writing shall be made at or before the close of the evidence, and section 538 simply provides that counsel shall reduce their prayers for special instructions to writing, without prescribing any specified limit as to the time when they shall be presented to the court. The two sections relate to subjects of a different kind and have no such necessary connection with each other; nor are they so correlated, as to require that they should be construed together, and that the words of section 536, namely, "at or before the close of the evidence," should be read into section 538. There was good reason for the requirement that a request to have the charge written should be made "at or before the close of the evidence," which does not apply to the provision of section 538 in regard to special instructions. The judge should have full time to prepare and write out his general instructions, and due notice was therefore demanded, as he cannot well wait until the argument is concluded and the time has arrived for delivering his charge to the jury. But not so much time is required for the consideration of special instructions, already prepared and written. The omission to fix any definite time for filing the request for special instructions in section 538, while such a provision, as to the request for a written charge, is found in section 536, is cogent proof that the Legislature did not intend that the request for special instructions should be made "at or before the close of the evidence," and we are not at liberty to insert in that section language not to be found there and which will materially change its meaning. The time within which instructions should be requested must be left to the sound discretion of the court, as in the case of many other matters of mere practice or procedure, and we will be slow to review or interfere with the exercise of that discretion; but the presiding judge should, and we are sure he always will, so order his discretion as to afford counsel a reasonable time to prepare and present their prayers. Counsel should perform this duty to their clients seasonably and with a proper regard for the right of the trial judge to require that he should have reasonably sufficient time to write his charge and to consider the prayers for special instructions, and what time is required by each must be determined by the nature and exigencies of each case. The judge must wait until the evidence is closed in order that he may understand the case and prepare his charge, and, likewise, counsel cannot formulate their requests for instructions unless and until they are possessed of the facts or have sufficient knowledge of the case, as finally developed, for that purpose. The last piece of evidence may change the whole aspect of the matter, and counsel therefore cannot well anticipate what will happen, and prepare special prayers before the conclusion of the testimony or until they have had reasonable time thereafter to do so. If they attempt to do so they may find at last that all their work has been in vain. It follows that both judge and counsel must have adequate time to perform their respective functions after the moment when they can first intelligently do so, subject to the discretion of the court as to how much time is required, which discretion should of course be fairly exercised. We have ruled that, if a party desires more specific instructions than those given by the court in its general charge, he must ask for them. How can this be done if he is prohibited by statute from making a request for special instructions after the close of the evidence and without any discretion in the judge to extend the time, or any right to consider them at that stage; for how can he know, in advance of the close of the evidence, what principles of law will be applicable, so as to embody them in specific instructions for the guidance of the court in preparing its charge? At any stage of the trial the judge should, necessarily, have the discretion to permit special prayers to be handed up, in order that his instructions to the jury may be made amply sufficient to cover every phase of the case. Willey v. Railroad, 96 N.C. 408, 1 S.E. 446. The reason of the thing and the very nature and circumstances of trials alike preclude any other construction of section 538 than that we have indicated.
The learned judge was misled, we have no doubt, as to his power to extend the time, by the statement in several of the cases (which are collected in Clark's Code [3d Ed.] § 415 and note) to the effect that special prayers must be submitted "at or before the close of the evidence." This court, in using that expression, had in mind the language of section 536 of the Revisal, formerly section 414 of the Code and was not advertent to the fact that the same words were not used in section 528, formerly section 415 of the Code. It appears clearly, from the facts of those cases, that in none of them was it necessary to decide that the time for presenting special instructions was "at or before the close of the evidence" and did not extend to the opening of the argument. In each of them, we believe, the request for special instructions was made unreasonably late in the trial, after the argument had been begun and long after the close of the evidence, and when it was impossible for the judge to give them proper consideration. But, however all this may be, we hold in the case at bar that no opportunity was given counsel to submit his prayers. The court adjourned "at once" at the close of the evidence, and the request for instructions was made at the earliest moment of the next day. The plaintiff's counsel was not required to file them during the recess, so that, unless he was in time, we must hold that counsel should prepare their requests for special instructions within the very instant of time that may sometimes elapse between the close of the evidence and the beginning of the discussion before the jury, and this would be mentally and physically impossible. We have not been endowed with faculties that will move with the celerity required for such a purpose. But we think that if the words of section 536 "at or before the close of the evidence" had been inserted in section 538, they would mean at some time not later than the beginning of the argument by counsel to the jury. The expression refers rather to the stage of the trial than to the particular moment of time when the evidence is closed. This is the reasonable view, and under this construction of the statute there was error in the ruling below. It is usually the case that the argument follows immediately upon the close of the evidence; but, if a recess...
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