Eller v. Church

• Decision Date: 30 November 1897
• Citation: 28 S.E. 364,121 N.C. 269
• Parties: ELLER v. CHURCH.
• Court: North Carolina Supreme Court

28 S.E. 364

121 N.C. 269

ELLER v. CHURCH.

Supreme Court of North Carolina

November 30, 1897

Appeal from superior court, Wilkes county; Hoke, Judge.

Action by B. F. Eller, as administrator de bonis non of the estate of Peter Eller, deceased, against A. M. Church. Judgment for plaintiff, and defendant appeals. Reversed.

The court cannot direct a verdict in favor of the party having the burden of proof.

W. W Barber and Glenn & Manly, for appellant.

DOUGLAS J.

This was a civil action, begun before a justice of the peace, and tried on appeal in supreme court, to recover on the following receipt or contract: "Received of B. F. Eller, adm'r d. b. n. of Peter Eller, deceased, the sum of $5.93, $553.80 being payments in full of the principal, interest, and costs in the following judgments on the superior court docket of Wilkes county, which have been assigned to me [specifying the judgments], the same having been assigned to me; and should it turn out that I have received more than is due me in law or that there are any prior liens having precedence over the above judgments, then I am to refund to the said B. F. Eller adm'r, the amount overpaid. Given under my hand and seal this 22d day of August, 1881. [Signed] A. M. Church. [Seal.]" The plaintiff introduced a record of the superior court showing a judgment obtained in 1894 against him, as such administrator, by one J. S. Huffman. This judgment was rendered on a former judgment obtained in a justice's court in October, 1878. To the second action the plaintiff practically made no defense, and allowed judgment to be taken against him for the full amount. In the suit at bar the defendant pleaded the statute of limitations. The case on appeal states that "his honor instructed the jury that from the evidence introduced the plaintiff was entitled to recover, and the findings of the jury were in accordance with the instructions of his honor." While this is not very explicit, we presume that his honor charged the jury that, if they believed the evidence, the plaintiff was entitled to recover as a matter of law, there being no conflict of testimony. Under no circumstances could he have directed a verdict in favor of the plaintiff, upon whom rested the burden of proof State v. Shule, 32 N.C 153; Spruill v. Insurance Co., 120 N.C. 141, 27 S.E. 39. But, assuming that the charge was free from this objection, we think there was error in his honor's instruction as...