Greene v. Tally

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: McIVER, C. J
• Citation: 39 S.C. 388,17 S.E. 779
• Parties: GREENE et al. v. TALLY.
• Decision Date: 13 June 1893

17 S.E. 779
39 S.C. 388

GREENE et al.
v.
TALLY.

Supreme Court of South Carolina.

June 13, 1893.

Depositions—Taken Outside the State—Sufficiency of Notice—Opinion Evidence.

1. Under Gen. St. § 849, as amended by Act 1883, authorizing a trial justice, or any "other officer authorized by law to administer

[17 S.E. 780]

oaths, " to take testimony de bene esse, and under Act 1888, as amended by Act 1891, authorizing notaries outside the state to administer oaths, testimony taken on a commission from a trial justice before a notary of another state and certified under his notarial seal is admissible.

2. Where a notice was given on the 11th day of the month of an intention to take the testimony de bene esse of a witness in an adjoining state and the examination was made on the 17th, it will be presumed, in the ab-sence of anything to the contrary, that the notice was sufficient to enable the party notified to attend.

3. In an action for goods sold, a question as to what transactions defendant had with witness' firm, and "whether or not the same constituted indebtedness, " intending thereby to ask whether witness' firm had sold defendant goods, is not objectionable as calling for an expression of an opinion.

Appeal from common pleas circuit court of Greenville county; James Aldrich, Judge.

Action by Greene, Rea & Co. against J. A. Tally on an account for goods sold. From a judgment of the court of common pleas reversing a judgment of a trial justice court for plaintiffs, they appeal. Reversed.

Plaintiffs appeal to the supreme court on the following grounds: (1) Because his honor erred in holding that the commission to examine Ed. L. Greene was im-providently, prematurely, and illegally issued. (2) Because his honor erred in holding that the questions asked in the commission were questions of law, and their answers conclusions of law. (3) Because his honor erred in holding that when a witness testifies that an article was sold, and had not been paid for, he cannot go further, and say whether or not the transaction constitutes indebtedness. (4) Because his honor erred in holding that the witness Ed. L. Greene did not testify according to his own knowledge, the presumption being when such testimony is given that the witness testifies of his own knowledge till the contrary is shown, which is not the case in this instance. (5) Because his honor erred in holding that there was not sufficient evidence to support the judgment of the trial justice; the evidence being undisputed, no cross interrogatories having been filed, and no motion for nonsuit having ever been made. (6) Because his honor erred in holding that the defendant was entitled to further notice of time and place than the notice and affidavit attached to the interrogatories, a copy of which was served on defendant's attorney. (7) Because his honor erred in granting an order simply reversing the trial justice judgment, for, if this court should sustain said order, the plaintiffs would have no further recourse, and the matter would stand res adjudicata. (8) Because his honor erred in sustaining any of the defendant's exceptions to the circuit court. (9) Because his honorerred in reversing the judgment, as it was contrary to the evidence, the defendant having introduced no testimony. (10) Because his honor erred in not holding that, if the evidence was insufficient, a nonsuit would have been defendant's proper remedy; and in not passing an order granting defendant a new trial, instead of reversing the judgment.

J. C. Jefferies for appellants.

A Blythe, for respondent.

McIVER, C. J. The plaintiffs brought this action in a trial justice court on an account for goods sold and delivered by plaintiffs to defendant, and, having recovered judgment there, the defendant appealed to the court of common pleas, where it was heard by his honor, Judge Aldrich. Upon hearing the appeal the circuit judge signed the following order: "Upon hearing the exceptions to the trial justice judgment in this case, after argument of counsel, it is ordered that the exceptions be sustained, and the judgment of the trial justice be reversed, with costs of appeal." From this order plaintiffs appeal upon the several grounds set out in the record. Inasmuch as the order sustaining the appeal gives no reason for the conclusion reached by the circuit judge, we are left to conjecture as to the grounds upon which he based his conclusion. The phraseology of the order...