Hodges v. Hodges

• Decision Date: 28 April 1890
• Citation: 11 S.E. 364,106 N.C. 374
• Parties: HODGES v. HODGES.
• Court: North Carolina Supreme Court

11 S.E. 364

106 N.C. 374

HODGES v. HODGES.

Supreme Court of North Carolina

April 28, 1890

Appeal from superior court, Mecklenburgh county; CONNOR, Judge.

Action by Josiah Hodges against Calvin W. Hodges to recover real estate. Defendant appeals.

A general objection to the reception of evidence of a witness as to what he heard another person say with regard to a certain subject is sufficient, without pointing out specific objections.

Burwell & Walker, for appellant.

Jones & Tillett, for appellee.

SHEPHERD J.

It became material on the trial of this action to ascertain whether Mrs. M. A. Hodges was an infant when she executed the deed of July, 1862. For the purpose of proving that she was under the age of 21 years at that time the plaintiff introduced D. C. Pharr, who testified that he had heard his mother say that the said M. A. Hodges was born in 1845. This was objected to; and, the objection being overruled, the defendant excepted. The rule which admits such hearsay declarations is clearly defined by the authorities; and it is well settled that, as preliminary to their admission, it must be affirmatively shown that they were made ante litem motam. "It is necessary that they should have been made, not only without any view of benefiting the person making them but also without a view of benefiting any other." Morgan v. Purnell, 4 Hawks, 95. In the above case the declarations of Mrs. Morgan were rejected because it was not shown when they were made; HENDERSON, J., saying that "for aught that appears to the contrary, they might have been made on the very day on which her deposition was taken and with a view to this contest. *** At all events, it does not appear to have been made ante litem motam." Best Ev. 476, and notes. It was not shown in our case when the declarations were made, and it was therefore error on the part of the court in receiving them. Another requirement is that the declarant must be dead. 1 Greenl. Ev. §§ 103, 104; Moffit v. Witherspoon, 10 Ired. 185; Clements v. Hunt, 1 Jones, (N. C.) 400; Best, Ev. 476.

This fact should have been shown before the witness was permitted to testify as to the declaration, and it was not necessary that the defendant should have assigned his objections specifically. The general objection was sufficient. State v. Wilkerson, 103 N.C. 337, 9 S.E. Rep. 415. Not only did the plaintiff fail to show that the declarant was dead but it appeared from the...