Davis v. Hill

• Decision Date: 30 June 1876
• Citation: 75 N.C. 224
• Court: North Carolina Supreme Court
• Parties: THOS. DAVIS and wife DOCEY and others v. NATHAN HILL.

75 N.C. 224

THOS. DAVIS and wife DOCEY and others

v.NATHAN HILL.

Supreme Court of North Carolina.

June Term, 1876.

Upon a disagreement of counsel as to the testimony of a witness, upon the trial of a cause in the Superior Court, the Court recalled the witness and reduced his testimony upon the disputed matter verbatim, to writing, which upon being read to the witness, was acknowledged by him to be correct. Counsel made no objection to the correctness of the written evidence, and the same was read to the jury by the Court. Held, that it was not error in the Court below to refuse to allow counsel to argue to the jury that the witness when recalled had made a different statement from that read to the jury by the Court.

( Munroe v. Stultz, 4 Ired., 49; Patton v. Clendennon, 3 Murph., 68; Reed v. Cox, 6 Ired. Eq., 511, cited and approved.)

CIVIL ACTION tried before SEYMOUR, J., at Spring Term, 1875, of LENOIR Superior Court.

The action was instituted for the purpose of having the defendant declared a trustee of certain lands, for the benefit of the plaintiffs. There was evidence tending to show that the land was purchased at a sale, under execution against the plaintiff by Council Wooten in 1867, and was in January, 1872, sold by Wooten to the defendant for the sum of $800, of which $200 was paid in cash and three notes given for the balance, to-wit: one for $300, one for $150, payable on the 1st day of January, 1873, and another for $150, payable January 1st, 1874. All of these notes were paid by the defendant before the commencement of this action.

There was also evidence tending to prove that the defendant bought the land in consequence of an agreement to the effect that he should buy the land from Wooten in order to befriend Davis, and that when Davis repaid the purchase money, the defendant was to convey the land to the feme plaintiff and her children.

Evidence was offered on behalf of the defendant, tending to prove that there was no such agreement.

The following issue was submitted to the jury: Did the defendant purchase the land described in the pleadings, in trust for the wife of the plaintiff, Thomas, and her children?

To this the jury responded in the negative.

Upon the argument one of the counsel for the plaintiffs stated that a witness for defendant, one B. F. Sutton, had testified as to the terms of the contract, according to their views of the same. The counsel for the defendant interrupted him and stated that he was misrepresenting the testimony. Upon reference to his notes his Honor found that the witness had testified as stated by the defendant's counsel, and so stated. The counsel for the plaintiff insisted that his view of the testimony was correct, and that he was supported by his associates. Thereupon his Honor recalled the witness and examined him himself upon the point in question, taking down his testimony verbatim, and read the same to the witness, in order that he might correct it if erroneous. The counsel for the plaintiff again resumed his argument, and insisted that the witness had given the same evidence when recalled as he had claimed that he had given, and proceeded to state what he had at first claimed to be the testimony, and then what he claimed to have been his testimony when recalled. The Court being of the opinion that the counsel had given an incorrect statement of what the witness had said upon being recalled, interrupted him and so stated, and read the evidence of the witness to the jury. Counsel for the plaintiff insisted that he had a right to argue to the jury his version of the last statement of the witness, and that what the witness testified was a matter for the jury. The Court held that the counsel could not further argue the matter to the jury nor contend before them that the witness when recalled had made a different statement from that which his Honor had reduced to writing. The counsel excepted.

Concerning the testimony of this witness his Honor charged the jury: That while it was the duty of the Judge to narrate to them the evidence, they were not bound by his statement of it, but were sole judges of what was the testimony.

Upon the verdict of the jury the Court rendered judgment for the defendants and the plaintiffs appealed.

Smith & Strong and A. K. Smedes, for the appellant .

Faircloth & Grainger, contra .

BYNUM, J.

The material issue submitted to the jury was: “Did the defendant purchase the land described in the pleadings, in trust for the plaintiffs, Docey and her children.” Evidence was given in support of the affirmative and negative of this proposition, but the jury found in the negative. This verdict ends the controversy, unless some one of the exceptions taken by the plaintiffs will avail them. The only exception relied upon in this Court is that which arose upon the testimony of Mr. Sutton. After the evidence was given, in his address to the jury the counsel for the...