Fox v. . Yarborough

Supreme Court of North Carolina

Fox v. . Yarborough

35 S.E.2d 885, 225 N.C. 606, 1945 N.C. LEXIS 376

CourtSupreme Court of North Carolina

DecidedNovember 21, 1945

StatusPublished

Cited by4 cases

This text of 35 S.E.2d 885 (Fox v. . Yarborough) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fox v. . Yarborough, 35 S.E.2d 885, 225 N.C. 606, 1945 N.C. LEXIS 376 (N.C. 1945).

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Opinion

Winborne, J.

Taking note of tbe fact tbat plaintiffs do not challenge tbe sufficiency of tbe showing made by defendant in support of Iris motions upon wbicb tbe orders in question are based, decision on this appeal is restricted to tbis question: After complaint is filed, and before answer is filed, are tbe provisions of tbe statute, G. S., 1-569, and G. S., *608 1-570, available to defendant for adverse examination of plaintiffs to procure information to file answer?

Tbe question is answered by tbe statute,, and in interpretative decisions of tbis Court.

Tbe statute provides that a party to an action may be examined as a witness by tbe adverse party. Tbe decisions declaring tbe right of a plaintiff to adversely examine a defendant for tbe purpose of obtaining information upon wbicb to file complaint are numerous. And tbis Court speaking to tbe subject bas said that tbe statute gives tbe right alike to plaintiff and defendant. Jones v. Guano Co., 180 N. C., 319, 104 S. E., 653, and Chesson v. Bank, 190 N. C., 187, 129 S. E., 403.

While in Jones v. Guano Co., supra, tbe right was denied to defendant upon other grounds, Clark, C. J., speaking to tbe subject, declares: “Tbis proceeding may be permitted to tbe plaintiff to procure information to frame complaint, Holt v. Finishing Co., 116 N. C., 480, or after answer is filed tbe plaintiff may cause tbe defendant to be examined to procure evidence. Helms v. Green, 105 N. C., 251; Vann v. Lawrence, 111 N. C., 32. And by parity tbe defendant may have the plaintiff examined to procure information to file answer, or after tbe answer is filed to procure evidence for tbe trial.” To like effect are expressions by Stacy, C. J., in Chesson v. Bank, supra.

Hence in tbe present case tbe motion was properly made and allowed.

However, when a proper order for such examination bas been made, appeal therefrom is premature and ordinarily will be dismissed. Ward v. Martin, 175 N. C., 287, 95 S. E., 621; Monroe v. Holder, 182 N. C., 79, 108 S. E., 359; Abbitt v. Gregory, 196 N. C., 9, 144 S. E., 297; Johnson v. Mills Co., 196 N. C., 93, 144 S. E., 534.

Nonetheless, we have in our-discretion elected to consider tbe appeal on its merit, Ward v. Martin, supra.

Affirmed.

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Winborne, J.

Taking note of tbe fact tbat plaintiffs do not challenge tbe sufficiency of tbe showing made by defendant in support of Iris motions upon wbicb tbe orders in question are based, decision on this appeal is restricted to tbis question: After complaint is filed, and before answer is filed, are tbe provisions of tbe statute, G. S., 1-569, and G. S., *608 1-570, available to defendant for adverse examination of plaintiffs to procure information to file answer?

Tbe question is answered by tbe statute,, and in interpretative decisions of tbis Court.

Tbe statute provides that a party to an action may be examined as a witness by tbe adverse party. Tbe decisions declaring tbe right of a plaintiff to adversely examine a defendant for tbe purpose of obtaining information upon wbicb to file complaint are numerous. And tbis Court speaking to tbe subject bas said that tbe statute gives tbe right alike to plaintiff and defendant. Jones v. Guano Co., 180 N. C., 319, 104 S. E., 653, and Chesson v. Bank, 190 N. C., 187, 129 S. E., 403.

While in Jones v. Guano Co., supra, tbe right was denied to defendant upon other grounds, Clark, C. J., speaking to tbe subject, declares: “Tbis proceeding may be permitted to tbe plaintiff to procure information to frame complaint, Holt v. Finishing Co., 116 N. C., 480, or after answer is filed tbe plaintiff may cause tbe defendant to be examined to procure evidence. Helms v. Green, 105 N. C., 251; Vann v. Lawrence, 111 N. C., 32. And by parity tbe defendant may have the plaintiff examined to procure information to file answer, or after tbe answer is filed to procure evidence for tbe trial.” To like effect are expressions by Stacy, C. J., in Chesson v. Bank, supra.

Hence in tbe present case tbe motion was properly made and allowed.

However, when a proper order for such examination bas been made, appeal therefrom is premature and ordinarily will be dismissed. Ward v. Martin, 175 N. C., 287, 95 S. E., 621; Monroe v. Holder, 182 N. C., 79, 108 S. E., 359; Abbitt v. Gregory, 196 N. C., 9, 144 S. E., 297; Johnson v. Mills Co., 196 N. C., 93, 144 S. E., 534.

Nonetheless, we have in our-discretion elected to consider tbe appeal on its merit, Ward v. Martin, supra.

Affirmed.

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35 S.E.2d 885, 225 N.C. 606, 1945 N.C. LEXIS 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-yarborough-nc-1945.

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