Greenlee v. Greenlee

• Decision Date: 31 October 1885
• Citation: 93 N.C. 278
• Court: North Carolina Supreme Court
• Parties: J. H. GREENLEE, Trustee, v. VIRGIL GREENLEE and ANDREW BURGIN.

93 N.C. 278

J. H. GREENLEE, Trustee,

v.VIRGIL GREENLEE and ANDREW BURGIN.

Supreme Court of North Carolina.

October Term, 1885.

CIVIL ACTION to recover land, tried before Avery, Judge, and a jury at Fall Term, 1885, of MCDOWELL Superior Court.

The plaintiff offered evidence tending to show that he had title to the two tracts of land in controversy, which were not adjacent, but lying not far apart. But it did not appear that he had had possession of either since 1865.

The defendant produced in evidence a grant from the State, covering the land in dispute, and offered evidence tending to show that he had been in the actual possession under his grant, of parts of both the tracts claimed by the plaintiff for more than seven years prior to the commencement of the action in 1882.

One Burgin, a witness for the plaintiff, testified among other matters, that the defendant did not put his fence across the line of one of the tracts until three or four years before the commencement of the action, and after one argument had been made for the plaintiff and one for the defendant, the counsel for the defendant announced to the Court that the witness Burgin desired to correct his testimony in reference to the possesion. He had not been examined as to any other matter, except the length of the defendants' possession of one of the tracts.

The counsel for the plaintiff objected to allowing the correction to be made at that time, and gave as a reason that it might involve some change in the testimony for the plaintiff; that plaintiff might have met the matter proposed now to be shown by the witness, on the trial, with the testimony of witnesses dismissed without examination, and that plaintiff would not have introduced Burgin except upon information that he would testify as he had done.

The Judge then said, that Burgin would not be allowed to make any correction now; that if the correction was very material or important, it might be heard by the Court on a motion for new trial, and counsel might understand that now.

After the refusal to allow the witness to correct his testimony, an argument was made to the Court and jury by one of the counsel for the defendant, and the argument was concluded by counsel for plaintiff.

In addressing the jury, counsel for the defendants said: “Gentlemen of the jury, the counsel on the other side refused to allow Mr. Burgin to correct his testimony”--and was evidently proceeding to comment on the fact, when counsel for plaintiff objected.

The Court directed counsel to desist from any reference to the motion to allow Burgin to correct his testimony, and told the jury then that they need not be influenced in rendering their verdict by any remark made by counsel in reference to the matter, or by the fact that Burgin had not been allowed to make any correction. Counsel made no further remarks on that subject. Subsequently, in the charge to the jury, the Court told them that they would find the facts only from the testimony in the case.

There was no exception asked or entered for plaintiff...