Walton v. . McKesson

64 N.C. 77

• Court: Supreme Court of North Carolina
• Decided: January 5, 1870
• Status: Published

Opinion

Beade, J.

In an action on a former judgment, the record of the judgment is the proper evidence thereof. Its production can not be dispensed with, or supplied by any other evidence. The reason is, that upon plea of mil tiel record, the court decides upon the ims^ection of the record itself.

The plaintiff’s remedy in this case, was, upon notice to the defendants, a motion in the original suit, to have a record made of the judgment, in place of that which was destroyed; and then to offer the record in evidence in this suit. It was neither necessary nor proper to make profert of the judgment, but to refer to it as of record, prout patet per recordum; but instead of such reference, it is stated in the complaint as an excuse for not making profert, that the record had been destroyed.

It is not desirable that the merits of a cause should be. prejudiced by technicalities, and the courts are liberal in allowing amendments to reach substantial justice. If upon the coming in of the demurrer, the plaintiff had obtained leave to amend his complaint, so as to refer to the judgment, as “remaining of record,” and upon motion in the original cause had made a record, it might have been offered on the. trial, but as the plaintiff joined in the demurrer, we are obliged to say that it ought to have been sustained. There is error.

Per, Curiam. Judgment reversed.