Smith v. Nimocks

• Decision Date: 28 February 1886
• Citation: 94 N.C. 243
• Court: North Carolina Supreme Court
• Parties: W. H. SMITH, v. R. M. NIMOCKS.

94 N.C. 243

W. H. SMITH,

v.R. M. NIMOCKS.

Supreme Court of North Carolina.

February Term, 1886.

CIVIL ACTION, tried before MacRae, Judge, and a jury, at Spring Term, 1885, of the Superior Court of JOHNSTON county.

This action is brought to recover damages for an alleged malicious prosecution. It appears from the case settled upon appeal, that on the trial, “In the course of his argument to the jury, the plaintiff's counsel was allowed to read the first and unverified answer,” of the defendant, the latter objecting. The Court overruled the objection and the defendant excepted.

The material part of the answer referred to is as follows: “For a second defence and counterclaim??

I. That the plaintiff was, at the time of the institution of this action, and is now, indebted to him in the sum of fifteen hundred dollars, and that said indebtedness arose out of the transactions set out in the complaint, and is connected with the subject of this action.

II. That before the institution of this action, the plaintiff, wrongfully and unlawfully, detained certain personal property belonging to the defendant, to-wit: All the crop of cotton made by W. H. Smith in Johnston county in the year 1882, and wrongfully and unlawfully converted the same to his own use, and sold the same, and converted the proceeds thereof to his own use, and thereby became indebted to the defendant in the sum of fifteen hundred dollars, the value of said property so converted by the plaintiff, and that said indebtedness was subsisting at the time of the institution of this action, and arose out of the transaction set out in the complaint, and is connected with the subject of this action.”

The following, among other issues, was submitted to the jury:

1st. Did the defendant procure the arrest of the plaintiff without probable cause, as alleged in the complaint?

There was a verdict and judgment for the plaintiff, and the defendant appealed.

Mr. C. M. Busbee, for the plaintiff .

Mr. Duncan Rose, for the defendant .

MERRIMON, J. (after stating the facts).

Statements and admissions in the pleadings in an action, may be evidence against the party making them, just as if he had made them in any other connection or manner, and if the same should be competent for any purpose, on the trial of the issues of fact, they may be received as evidence. There is nothing in the nature of a pleading, that necessarily places admissions in it of a party, on a footing different from what they would be, if made elsewhere. The pleadings ordinarily create and afford no immunity as to facts stated in them, when it becomes necessary to use such facts as evidence. Indeed, pleadings themselves may be evidence in proper cases. Adams v. Utley, 87 N. C., 356; Guy v. Manuel, 89 N. C., 83; Brooks v. Brooks, 90 N. C., 142.

But such evidence must be introduced on the trial, at the proper time and in the proper way. This is necessary in order to afford the party to be affected adversely by it, just opportunity to explain, modify or correct it. He might be able to show that the admissions or statements were made by inadvertence, mistake or misapprehension, and the law allows him reasonable and orderly opportunity to do so. It never tolerates undue advantage. State v. Whit, 5 Jones, 224.

It is a mistaken notion that the whole record, including the pleadings, in an action, is necessarily in evidence, and may be read to the...