Strudwick v. Brodnax

• Decision Date: 30 June 1880
• Citation: 83 N.C. 401
• Court: North Carolina Supreme Court
• Parties: State on relation of F. N. STRUDWICK, Solicitor, v. JOHN W. BRODNAX and others.

83 N.C. 401

State on relation of F. N. STRUDWICK, Solicitor,

v.JOHN W. BRODNAX and others.

Supreme Court of North Carolina.

June Term, 1880.

MOTION by defendants in the cause for an order to take the deposition of a witness and for leave to rebut the evidence, heard at Fall Term, 1879, of ROCKINGHAM Superior Court, before McKoy, J.

The motion was denied and the defendants appealed.

Mr. Thomas Ruffin, for plaintiff .

Messrs. Mebane & Scott, for defendants .

SMITH, C. J.

This action on the guardian bond against the defendants, the principal obligor, and the representatives of the deceased surety, seeks to enforce an account and settlement of the trust estate in the hands of the former, and is under a reference to the clerk of the superior court of Rockingham county, wherein the cause is depending. The defendant, John W. Brodnax, the removed guardian, files an affidavit setting out an arrangement entered into between himself and the widow of the testator, from whom the ward's property is derived, whereby the use and profits of the land were to be appropriated to the discharge of the testator's debts in exoneration of its liability therefor, and that much of the trust fund with which he is charged has been applied to that object and expended in the support of the infant, who continued to reside with his mother, in consequence of which an adjustment of their mutual accounts and dealings is necessary before his administration of the ward's estate can be settled and his relations to it correctly ascertained. On this evidence his counsel moves the court for an order to take the examination of Mary L. Brodnax the mother, alleged to be temporarily resident of Danville, in Virginia, in order that, as he avers, he may establish his credits by her testimony and have “an opportunity of legally contradicting her testimony, if adverse to him, by her own verbal and written declarations and admissions” previously made.

An interpretation of those provisions of the code of civil procedure (that relate to and authorize such examinations, sections 332 to 340 inclusive) which permit a party to take and use the evidence and then directly impeach the source from which it comes, certainly introduces a novel feature in the law and practice, and subverts a long and well settled rule in the conduct of civil suits, that one who offers and examines a witness shall not be heard to impeach his character for veracity, or in the words of PEARSON, J., “to say that he attempted to impose on the jury by calling a witness whose general character is known to be bad.” The rule does not prevail in criminal prosecutions, and the state may offer such impeaching evidence, as was held in Collier v. Jeffreys, 2 Hay., 400.

But the principle does not exclude in either class of cases, proof of facts different from those testified by the witness. A party is not precluded by the statement of one of his witnesses from showing by others the facts to be different, but he is not at liberty directly to assail his reputation for truth and thus destroy his credit before the triers. The doctrine and the ground on which it rests are clearly defined and explained in Hice v. Cox, 12 Ired., 315, and in cases preceding it. Spencer v. White, 1 Ired., 236; Shelton v. Hampton, 6 Ired., 216, and Wilson v. Derr, 69 N. C., 137.

Is the rule abrogated or modified when the examination is had under section 336? The chapter in which these sections are found, abolishes separate and independent proceedings for the discovery of evidence under the usages obtaining in the former courts of equity, and substitutes a more direct and summary method of procedure, incident to the action itself, for taking and preserving the needed testimony. Parties and interested persons are made competent to testify on the trial, except in cases specified in section 343, which removes the disability, and in the amendatory act of March 11th, 1879, acts 1879, ch. 183. The examination taken preliminarily, as proposed by the defendant, can only be of parties to the action and of persons for whose immediate benefit the action is prosecuted or defended,” (C. C. P., §§ 333, 339,) and differs somewhat from an ordinary deposition.

1. It is taken only before a judge or clerk of the court wherein the cause is depending and therefore at a place within their jurisdiction to act. § 334.

2. The witness is not compelled to attend in any other county than that of his residence or in which he may be summoned.

3. The evidence may be used on the trial by either party. § 335.

4. It is open to rebuttal, and the examining party may treat it as proceeding from an adverse witness. § 336.

Still it falls under the general rule that forbids the party who takes and introduces the examination, as evidence on his own behalf, from discrediting the witness himself except as that result may be incidental to proof of a different state of facts. By calling his adversary, a party makes him so far his own witness that he cannot impeach or disparage his general credibility. 2 Whit. Prac., 279.

“Having called the plaintiff to testify,” remarks STRONG,...