Hudson v. Jordan

• Decision Date: 24 March 1891
• Citation: 12 S.E. 1029,108 N.C. 10
• Parties: HUDSON v. JORDAN.
• Court: North Carolina Supreme Court

12 S.E. 1029

108 N.C. 10

HUDSON v. JORDAN.

Supreme Court of North Carolina

March 24, 1891

Appeal from superior court, Sampson county; GRAVES, Judge.

This was an action to recover the land described in the complaint. The title was in issue. On the trial the plaintiff put in evidence a deed to him from the sheriff of Wayne county dated March 10, 1890. The land embraced by this deed is the subject of this action, and was sold to satisfy certain judgments for money against E. B. Jordan. These judgments the executions issued upon the same, and the returns by the sheriff thereof, were also put in evidence. "In order to estop defendant, plaintiff introduced in evidence a certified copy of a deed from E. B. Jordan (above named) and wife to D B. Jordan, the defendant, dated February 9, 1889, and duly proved and recorded in the office of the register of deeds of Wayne county, which was admitted to cover the land in controversy, which deed recites a consideration of $1,500." The plaintiff alleged that this deed was fraudulent; made by defendants in the judgments above mentioned to the present defendant, his son, to defraud the creditors of the former; and he produced evidence tending to prove such fraudulent purpose, and that the defendant paid nothing for the land, etc. "The defendant then introduced his examinations had before the clerk of the superior court of Wayne county, at the instance of the plaintiff, under sections 581 and 582 of the Code. Defendant introduced in his behalf his mother, who testified, among other things, that the money for the land was paid by D. B Jordan to E. B. Jordan, in her presence, no one except herself, her husband, and her son being present; that it was paid in a bundle, and was not counted, and she could not say how much there was, but she heard him say there was $1,100 or $1,200; that she took the money, and put it in her hand-satchel, and carried it home, and that night gave it to her husband, and has not seen it since. In reply, plaintiff introduced evidence tending to prove that the defendant had been in Pender county only one year before the deed was executed by him, and that he was insolvent when he went to Pender. E. B. Jordan was present in court during the whole of the trial, as was also the defendant, and neither of them was introduced as a witness. During the progress of the argument, one of plaintiff's counsel was proceeding to comment on the failure of E. B. Jordan and D. B. Jordan to take the stand as witnesses, when the defendant objected that it was improper to comment on their failure to take the stand. His honor overruled the objection, and the defendant excepted." There was a verdict and judgment for plaintiff, and the defendant appealed to this court.

It is proper for counsel to comment upon the failure of a party to the suit to give testimony where he was present at the trial, and there was evidence introduced tending to show fraud on his part; and the fact that his deposition had been taken before trial by the opposite party does not create an exception to the rule, where the deposition is offered by himself, and contained no explanation of the circumstances tending to show fraud.

George Rountree and H. L. Stevens, for appellant.

Aycock & Daniels and Strong, Gray & Stamps, for appellee.

CLARK J., (after stating the facts as above.)

The first three exceptions were without merit, and were abandoned on the argument. The fourth exception was: "The defendant was present in court during the whole of the trial. The plaintiff's counsel was proceeding to comment on the failure of the defendant to take the stand as a witness, when the defendant objected that it was improper to comment on his failure to take the stand. The court overruled the objection, and the defendant excepted." There is no exception to the nature of the comments of counsel as being an abuse of the privilege of counsel, and an exception of that kind must be made at the time, or it is waived. State v. Sugg, 89 N.C. 527; State v. Powell, 106 N.C. 635, 11 S.E. Rep. 191. The point presented is the right to comment on the fact that the opposite party in a civil action does not go upon the stand as a witness in his own behalf. Code, § 1353, prohibits such comment as to the defendant in a criminal action, but there is no such inhibition in regard to parties in civil actions. Whatever may have been the intimations of the court in the earlier cases, when the statute allowing parties in civil actions to testify (Code, § 1350) was fresh and considered almost revolutionary, there was never any statute prohibiting such comments in civil cases; and it has been settled in Goodman v. Sapp, 102 N.C. 477, 9 S.E. Rep. 483, that the introduction or non-introduction of a party as a witness in his own behalf is the subject of comment exactly as the introduction or non-introduction of any other witness would be. There was evidence tending to show, and which the jury found did show, fraud on the part of the defendant. He was in court, and heard it. The truth of the facts was peculiarly within his knowledge, and he was a competent witness That he failed to go upon the stand and contradict evidence affecting him so nearly was a pregnant circumstance which the jury might well consider, and which counsel, within proper limits, might call to their attention.

It is contended, however, that while this is generally true, this case is an exception, because the plaintiff had caused the examination of the defendant to be taken prior to the trial as authorized by Code, §§ 581, 582. That proceeding is a substitute for the bill of discovery under the former practice, (section 579,) and the plaintiff could have rebutted his deposition on the trial by adverse testimony, (section 583.) Besides, the deposition was put in evidence by the defendant himself, and the plaintiff "did not make one his witness by taking his deposition, which he declined to read." PEARSON, J., in Neil v. Childs, 10 Ired. 195. Every one knows that as a matter of practice the evidence of a witness viva voce is more effective with a jury than the reading of a deposition; and again, one of the recognized aids to a jury in arriving at the truth of controverted facts is the bearing of a witness on the stand, his manner in giving in his testimony, his frankness or efforts at concealment, and the like. That the defendant, who was in court when his character for truth and honesty was so strongly impeached, should prefer to put in his deposition and deprive himself of the benefit of his viva voce testimony, and the jury of the advantage of seeing his bearing and...