Whitesides v. Green

• Decision Date: 31 January 1870
• Citation: 64 N.C. 307
• Court: North Carolina Supreme Court
• Parties: ISAAC WHITESIDES v. W. W. GREEN, Adm'r. .

64 N.C. 307

ISAAC WHITESIDES

v.W. W. GREEN, Adm'r. .

Supreme Court of North Carolina.

January Term, 1870.

*1 A suit had been brought to Spring term 1867, and the docket at that term showed that an incipitur was required by the defendant, before pleading; upon the docket was also this entry, “Plaintiff charges for keeping his mother-in-law;” no pleas were entered until the case was called for trial, at Fall term 1869; Held, that, as the Court could not tell whether the entry, “Plaintiff charges” &c., at Spring term 1867, was the incipitur required, or was, by its vagueness, the occasion of calling for an incipitur, and also, considering the subsequent action of the parties respectively, it could not be said that the defendant had impaired his right to plead at Fall term 1869, and therefore, that it was erroneous in the Judge below, to restrict him in the exercise of such right, ex gr. by refusing to allow him to plead the General-issue.

An administrator, upon an issue in regard to assets, cannot testify to a transaction betwixt himself and his intestate, whereby a prima facie indebtedness of his own to the estate, was discharged; he may, however, testify as to transactions by himself, after the death, which relieve him from the charge of having assets in hand.

ASSUMPSIT, tried before Logan, J., at Fall term 1869, of CLEVELAND Court.

The action had been brought to Spring term 1867, and at that term, an incipitur was demanded by the defendant before pleading, and an entry was made upon the docket, “Plaintiff charges for keeping his mother-in-law.” No other steps were taken by either party, until Fall term 1869, when the cause was called for trial. At that time the plaintiff asked for judgment for want of a plea, which the Court refused. The defendant proposed thereupon, to plead the General-issue, but the Court would not permit it. The pleas put in, were in denial of assets.

As part of his proof upon these issues, the plaintiff showed by one Lattimore, that the latter had seen among the papers of the intestate, after her death, a receipt for $200.00, given to her by the defendant. In reply, the defendant offered to testify, that he had re-paid this money to his intestate, before her death; and also, that after her death, as administrator, he had exhausted the assets, by such and such payments. His Honor excluded this testimony upon both points, and the defendant excepted.

Some other points were made, which the opinion renders it unnecessary to state.

Verdict for the plaintiff; Rule &c.; Judgment, and Appeal.

Bynum, for the appellant .

Phillips & Merrimon, contra .

RODMAN, J.

*2 The difficulty of deciding the first point made in this case, arises, partly from the indefinite way in which the facts are stated, and partly from the uncertainty which always attends a question of, how far parties have waived or lost their rights, by omitting, through courtesy or indul gence to claim them in due time or manner.

The act of 1868-9, ch. 112 § 80, by its terms, is confined to cases in which administrators had already pleaded; we think therefore it has no application in this case. We must determine this case by inquiring what were the rights of the parties according to the course of practice in the Superior Courts, before the Code; and then how far those rights had been waived by not being asserted in due time. The law (previous to the C. C. P.) required a plaintiff to file his declaration within the first three days of the appearance term, and on his failure, the defendant might move to dismiss the action for want of prosecution. The defendant might dispense with a written declaration altogether, and the course among the bar was to consider that he did so, unless he gave the attorney of the plaintiff some notice to the contrary. As the defendant could require a formal declaration, it follows that he could also require a declaration, which, while stating the plaintiffs' case with sufficient fullness to be intelligible to the defendant, need not be formal: and this is what we understand to be meant by an “ incipitur.”

But while the defendant might move to dismiss the action for want of a declaration, he was not bound to do so. He might give the plaintiff a longer time to file it in, but unless he dispensed with one, expressly or by presumption, he was not bound to plead untill it was filed. The writ in this action was returned to Spring Term 1867, and at that term the record shows the following entry on the docket in the case: “charges for keeping his mother-in-law,” who was the intestate of the...