Sutton v. Walters
| Decision Date | 31 March 1896 |
| Citation | 24 S.E. 357,118 N.C. 495 |
| Parties | SUTTON v. WALTERS et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Lenoir county; Graham, Judge.
Action by Junius E. Sutton, administrator, against John D. Walters Alex. Sutton, and Shade Wooten & Co., on a promissory note. From a judgment in favor of Alex. Sutton and Shade Wooten & Co., plaintiff appeals. Affirmed.
It is within the discretion of the trial judge to allow a witness previously examined to be recalled.
R. O Burton, for appellant.
Geo Rountree, for appellees.
The exceptions based upon the incompetency of John D. Walters as a witness under section 590 of the Code are without merit. That section was analyzed and discussed in Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043, which has been since cited several times with approval. By reference to that decision, and, indeed, to the very words of the statute, it will be seen that, though the witness John D. Walters is a party to this action, and is testifying as to a personal transaction between himself and the intestate of the plaintiff, this disqualifies him only to testify "in behalf of himself or a person succeeding to his title or interest." In the present case he is not testifying in behalf of himself, for he does not contest the judgment against himself; and his interest cannot be affected in any way by this testimony, nor is his testimony "in behalf of any one succeeding to his title or interest." Whether his co-defendant, who was merely his surety on the bond, had been discharged by an extension of time to himself as the principal debtor, was a matter which in no wise affected the interest or liability of the witness. Judgment was admitted by him in favor of the plaintiff, and that liability could not be increased or affected should judgment also go against the surety, nor did the surety in any sense "succeed to his title or interest." Whether or not there was any sentimental consideration moving the principal debtor to wish to absolve his surety from liability was a matter for the jury, like all other questions of bias affecting the credit of a witness, but there was no legal cause rendering him an incompetent witness.
The permission of the court to recall a witness after the evidence closed was a matter of discretion in the judge. Olive v. Olive, 95 N.C. 485; Pain v. Pain, 80 N.C. 322; State v. King, 84 N.C. 737. It is for this very reason that additional evidence should be called if obtainable, that an exception that there is not sufficient evidence to go to the jury must always be made before verdict, in order that the defect can be supplied, if possible, since the object of the reformed procedure is that cases shall be tried on their merits, and parties not lose their rights by a mere inadvertence. This has been repeatedly decided. State v. Kiger, 115 N.C. 746, 20 S.E. 456, and numerous cases cited in Supplement to Clark's Code, p. 89.
His honor submitted to the jury the following issues: The issues should have embraced the further query whether such suretyship was known to the plaintiff when he gave the extension of time; but the defendants neither tendered such issue nor excepted to the failure to do so. Had the defendants done so, the court would have had an opportunity to correct what was doubtless an inadvertence with both parties as well...
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