Sorrell v. McGhee

• Decision Date: 15 October 1919
• Docket Number: 257.
• Citation: 100 S.E. 434,178 N.C. 279
• Parties: SORRELL v. MCGHEE ET AL.
• Court: North Carolina Supreme Court

100 S.E. 434

178 N.C. 279

SORRELL v. MCGHEE ET AL.

No. 257.

Supreme Court of North Carolina

October 15, 1919

Appeal from Superior Court, Wake County; Allen, Judge.

Action by R. L. Sorrell against J. C. McGhee and R. L. McGhee administrators, begun in justice court and appealed to the superior court. From a judgment there of nonsuit, plaintiff appeals. Reversed.

In an action against the estate of a deceased person, plaintiff may call the administrator to testify against his interest, and testimony of the administrator cannot be excluded on the ground that if he testified it would open the door to plaintiff's testimony, for that result follows only when the administrator is a voluntary witness testifying in his own behalf.

This is an action to recover $54.66, alleged to be due by account for goods sold and delivered, commenced before a justice of the peace and heard on appeal in the superior court.

The plaintiff introduced evidence showing that he was a farmer and also had a gin and store, and he produced upon the trial his account book or ledger, in which he kept the account against the intestate of the defendants in his own handwriting. This book was excluded upon the trial.

There are several exceptions to the exclusion of evidence which will be referred to in the opinion.

At the conclusion of the evidence, his honor entered judgment of nonsuit, and the plaintiff excepted and appealed.

W. G Briggs, of Raleigh, for appellant.

R. N Simms, of Raleigh, for appellees.

ALLEN J.

In Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043, the present Chief Justice gives an accurate and valuable analysis of section 1631 of the Revisal, as follows:

"It disqualifies--Whom?

(1) Parties to the action.

(2) Persons interested in the event of the action.

(3) Persons through or under whom the persons in the first two classes derive their title or interest.

A witness belonging to one of these three classes is incompetent only in the following cases:

When--To testify in behalf of himself, or the person succeeding to his title or interest, against the representative of a deceased person, or committee of a lunatic, or any one deriving his title or interest through them.

And the disqualification of such person, and in such instances, is restricted to the following:

Subject-matter--A personal transaction or communication between the witness and the person since deceased or lunatic.

And even in those cases there are the following

Exceptions.--When the representative of, or person claiming through or under the deceased person or lunatic, is examined in his own behalf, or the testimony of the deceased person or lunatic is given in evidence concerning the same transaction."

This is a guide and standard for determining the competency of evidence under this section, and, when properly applied, we are of opinion error has been committed in the exclusion of evidence, which entitles the plaintiff to a new trial.

The plaintiff offered evidence tending to prove that he kept his account against the intestate of the defendants in a book at his store, and he then called one of the administrators and a son of the intestate, and he offered "to show by the witness, who is a defendant in this action, that in the lifetime of his father, and a short time before his death the witness went to the store of the plaintiff for his said father and made a part payment on...