St. v. Andrews

• Decision Date: 20 November 1894
• Citation: 115 N.C. 417,20 S.E. 450
• Court: North Carolina Supreme Court
• Parties: STREET et al. v. ANDREWS.

20 S.E. 450

115 N.C. 417

STREET et al.

v.ANDREWS.

Supreme Court of North Carolina.

Nov. 20, 1894.

Counterclaim—Independent Transaction-Harmless Error—Depositions.

1. In an action for damages by maintaining an obstruction on defendant's land, which prevented the free flow of water from plaintiff's land, a counterclaim that plaintiff placed an obstruction on her land whereby water was thrown on defendant's land, to his damage, was properly stricken out.

2. Where a widow and her children sued for damages to her land, and she was permitted to testify as to the ages of her six minor children, such testimony was irrelevant, but its admission was no ground for a new trial.

3. It appearing from the return of a deposition that it was taken on the day, at the place, and by the person designated, that the answers are on a separate sheet attached to interrogatories, but not at the end of each one, if the whole is above the signature of the commissioner, is immaterial.

Appeal from superior court, Rutherford county; Armfield, Judge.

Action by N. M. Street and others against D. W. D. Andrews for damages to realty. Judgment for plaintiffs, and defendant appeals. Reversed.

McBrayer & Durham, for appellant.

CLARK, J. The cause of action alleged was an obstruction placed by the defendant on the upper edge of his land, preventing the free flow of water from the land of the plaintiff just above, and ponding it back. The counterclaim attempted to be set up was that the plaintiff had placed an obstructiou on the lower edge of his own land, thus diverting water which was thrown upon and water-sobbed defendant's land. These were two separate and distinct torts. The latter did not "arise out of the transaction set forth in the complaint, " nor was it "connected with the subject of the action." Code, § 244 (1). It was the subject for an independent action, and was properly disallowed as a counterclaim. Bazemore v. Bridgers, 105 N. C. 191, 10 S. E. 888.

The testimony as to the ages of the minor plaintiffs was at most irrelevant, and, assuch. It is not ground for a new trial, unless it could be seen to have prejudiced the side objecting. It was harmless error. Glover v. Flowers, 101 N. C. 134, 7 S. E. 579; Livingston v. Dunlap, 99 N. C. 208, 6 S. E. 200; McGowan v. Railroad Co., 95 N. C. 417; Clark's Code (2d Ed.) p. 586.

The counterclaim having been properly ruled out, it was not error to reject the evidence offered to show the water-sobbed condition of defendant's land. This...