Gauldin v. Town of Madison

• Decision Date: 21 April 1920
• Docket Number: 359.
• Parties: 179 N.C. 461, 10 A.L.R. 1497 v. TOWN OF MADISON. GAULDIN
• Court: North Carolina Supreme Court

102 S.E. 851

179 N.C. 461, 10 A.L.R. 1497

GAULDIN v. TOWN OF MADISON.

No. 359.

Supreme Court of North Carolina

April 21, 1920

Appeal from Superior Court, Rockingham County; McElroy, Judge.

Action by J. O. Gauldin, administrator of estate of Bessie Virginia Gauldin, deceased, against the Town of Madison. From a judgment of nonsuit, plaintiff appeals. No error.

Where no complaint had been filed in the previous action upon which plaintiff relied to defeat the bar of the statute of limitations, he could not introduce parol evidence of any kind to establish what cause of action he intended to state so as to show that it was the same as in the pending action.

This suit was brought to recover damages upon the allegation that the defendant had negligently caused the death of the plaintiff's intestate by a defect in one of its streets known as Water street, at its junction with the bridge over the Dan river, the deceased having been thrown violently from the buggy in which she was riding, resulting in injuries to her person, from which she died on August 22, 1914. Defendant denied that it had been guilty of negligence, pleaded contributory negligence, and specially set up as a defense that the death of plaintiff's intestate occurred on August 22, 1914, and this action was commenced more than one year from the said death. Plaintiff replied, admitting that this action was commenced on October 19, 1916, more than one year after his intestate's death, but alleging that an action was previously commenced by summons which was issued on August 16, 1915, and served on August 20, 1915; it being returnable to November term of the superior court of Rockingham county; that the said action was, on motion of the defendant therein, dismissed by the court on the last day of November term, 1919 (December 4, 1919), for failure to file a complaint; that, at the next term of the court, the plaintiff moved to set aside the judgment of dismissal upon affidavit alleging that the former action "was based upon a claim for damages for the wrongful death of Bessie Virginia Gauldin, caused by a defect in the street of said town of Madison." The motion was denied by Judge Webb, then presiding, and no appeal was taken. Summons was issued in the present action October 19, 1916, and served November 1, 1916.

At the trial of the present action, the court below excluded the said affidavit and the judgment or order of Judge Webb, and all other evidence offered by plaintiff for the purpose of identifying the present with the former action, in order to repel the effect of the statute that a suit to recover damages for death by wrongful act shall be brought within one year after the death. Upon the exclusion of all available and existing evidence offered by plaintiff to carry the burden of the issue as to the bar of the statute, he submitted to a nonsuit and appealed.

Douglas & Douglas, of Greensboro, J. R. Joyce and J. M. Sharp, both of Reidsville, and R. M. Robinson, of Greensboro, for appellant.

C. O McMichael, of Winston-Salem, J. C. Brown, of Madison, and Manly, Hendren & Womble, of Winston-Salem, for appellee.

WALKER J. (after stating the facts as above).

The plaintiff contends that the affidavit of Mr. J. R. Joyce filed by him and upon which he based his motion to set aside the former judgment, was competent to prove the cause of action in the first suit in order to repel the bar of the statute, by showing the identity of the cause of action in this case with that in the former suit, and that the court erred in excluding it. We do not agree with the contention and hold, to the contrary, that the court was right in its decision upon the question. No pleading was filed in the first action, and the only way, that we know of, to show what the cause of action was, is by the production of the complaint itself or a duly certified copy thereof. The complaint itself is the "only" evidence of the cause of action alleged, or "intended" to be alleged. Nothing else can prove it, or, as has so often been held by this court, a record is the "only" proof of itself, which the law will hear.

The precise question was raised and decided in Bryan v. Malloy, 90 N.C. 508, where a suit was brought and no complaint or other pleading filed; but a deposition was taken by the plaintiff and remained on file. Both parties were present when the deposition was taken, but it was never read or offered in evidence. The first action was nonsuited. A second suit was brought, but no complaint was filed, and it was attempted to be shown in the pending action by the oral examination of the plaintiff in that action what was the cause of action therein. This evidence was excluded. The defendant then in the pending action, in which pleadings had been filed, submitted to a nonsuit and appealed. This court sustained all the rulings. The court, after a clear discussion of the matter by Justice Ashe, closed with these words:

"The principle established in these adjudications is, that parol proof is admissible, and only admissible in aid of the record; that is, whenever the record of the first trial fails to disclose the precise point on which it was decided, it is competent for the party pleading it as an estoppel to aver the identity of the point or question on which the decision was had, and to support it by proof. But there must be a record to be aided. When there is no record, as in our case, there is no foundation for the proof."

In the later case of Tomlinson v. Bennett, 145 N.C. 279, 59 S.E. 37, the court, referring to the passage just taken from Judge Ashe's opinion, says: "The learned justice used the word 'record' as synonymous with 'pleading.' " Justice Connor further says in the Tomlinson Case, supra:

"Plaintiff encounters another difficulty--how is the court to know what the defendant, the plaintiff in that action, would have alleged therein as his cause of action? We do not think parol evidence would be competent to show what a plaintiff would have alleged in a complaint which was never filed. * * * The only record is a summons; no complaint; no answer; no issue, and no verdict--only a judgment of nonsuit, which in that case means a molle prosequi."

Concluding the discussion, and referring to the class of cases in which parol evidence is admissible to make more specific the issues decided in a former action, the learned justice proceeds to the review of Bryan v. Malloy, supra, and says that Justice Ashe states the correct rule in that case, which is that the court will not admit any evidence to prove a record other than the record itself, unless that once existed and has been lost, or, having existed, cannot be produced, and the burden of showing this rests upon the party relying upon the record. It would seem that this is sufficient authority to sustain a proposition so universally recognized as law that the best and only proof of a record is by the record, as in no other mode can we be properly advised. But there is unlimited authority to sustain it. Commissioners v. Packing Co., 135 N.C. 62-68, 47 S.E. 411; Rollins v. Wicker, 154 N.C. 559, 70 S.E. 934; Wade v. Odeneal, 14 N.C. 423; Hughes on Procedure, pp. 14 and 749; Munday v. Vail, 34 N. J. Law, 418; Mondel v. Steel, 8 Mess & W. 858. A judicial record is neither to be originally created, nor can it be increased or diminished by averment out of or beyond that record. Hughes on Procedure, p. 749; 17 Cyc. 497, 567, 571; Dimick v. Brooks, 21 Vt. 578. In Wade v. Odeneal, supra, Ruffin, J., said:

"The question is, how this judgment is to be proved. Courts of record speak only in their records. They preserve written memorials of their proceedings, which are exclusively the evidence of those proceedings. * * * The records may be identified by testimony, but their contents cannot be altered, nor their meaning explained by parol. The acts of the court cannot thus be established."

In Rollins v. Wicker, supra, where the plaintiff...