Thompson v. Onley

96 N.C. 9

Opinion

Smith, C. J.,

(after stating the case):

PLAINTIFF'S APPEAL.

The instruction complained of is in entire accord with the law as declared in Holly v. Holly, 94 N. C., 670.

The appellant’s counsel suggests that the defendant’s testimony necessarily involves a. transaction with the intestate’s payee, since by his act alone could the property in the note be divested so as to pass to another; and hence it comes within the inhibition of §590 of The Code.

To this objection the answer is obvious and direct.

I. No exception; to the admission of the testimony was taken.

II. It cannot be seen that .the only source of the witness’s information was “ a personal transaction or communication between her and the deceased.”

III. The plaintiff, if he wished to have the evidence ruled out for the reason suggested, could have interrogated the witness as to the facts in a preliminary inquirjq in order to sustain his proposed exclusion should it be that the only knowledge or information possessed by the witness was derived from personal intercourse with the deceased. Lockhart v. Bell, 86 N. C., 449, and same case, 90 N. C., 499; Sikes v. Parker, 95 N. C., 232.

It must be declared that there is no error in the ruling, and the judgment restoring the note to the defendant must he affirmed.

No error. Affirmed.

DEPENDANT’S APPEAL.

Without adverting particularly to the question discussed by appellant’s counsel, whether the refusal to accede to the sheriff’s demand of the note was in strictness a contempt as ■offering a resistance wilfully to a lawful process of the Court, The Code, §648, paragraph four, the order for the surrender ■of the note, at the hearing, disobeyed while it was in the power of the appellant to comply, warranted the commitment as a means of forcing compliance; and as this result was at once obtained, the order of imprisonment was exhausted and the appellant set at liberty.

There was consequently no practical benefit to be sought by an appeal, and an abstract question only is presented, that is, as to the right of the Judge to require the surrender ■of the' paper to the custody of an officer of the Court.

The costs, as incidental to the judgment, must follow its disposition. The appeal of the defendant, as wholly unnecessary, must be dismissed.

Dismissed.