Opinion
(Decided 11 May, 1898.)
Action on Contract — Depositions — Clerk of Superior Court — Seal of Office — Process — Waiver of Objections — Witness, Interested — Evidence.
1. When a commissioner to take depositions or any other process is issued to be executed within the county where it is issued, no seal is required to be affixed thereto; otherwise, when it is to be executed outside of such county. (CLARK, J., dissents.)
2. Where a party attends upon and takes part in taking depositions he thereby waives all objections of a formal character, but a void process will not be vitalized unless there is an amendment without prejudice to third parties.
3. Where the testimony of a witness is objected to because of his interest in the action, such objection cannot be sustained where it is shown that such witness has no such interest.
4. In an action against an administrator for money loaned to his intestate, the plaintiff testified as to a mark on an almanac and when it was placed there. The defendant objected to the testimony as showing a transaction with the deceased: Held, that the testimony was properly admitted since it appeared from other testimony that the mark was not placed on the calendar at the time the money was loaned.
ACTION, tried before Norwood, J., and a jury, at Spring Term, 1897, of CLEVELAND. There was a verdict for the plaintiff, and defendant appealed. The facts sufficiently appear in the opinion.
W. J. Montgomery for plaintiff.
J. W. Gidney and Webb Webb for defendant.
This action is against the defendant S. B. (615) Rhea, as administrator d. b. n. of R. A. Rhea, for money loaned and for other matters due on an open account. At the trial defendant objected to the reading of the deposition of the plaintiff and Julia Patterson, a sister of the plaintiff. The exception was solely on the ground that the commission issued by the clerk of Cleveland County to H. T. Hudson to take the deposition had no seal attached and was void according to The Code, 1357. The defendant failed to observe other provisions of the law. The act of 1797, Rev. Stat., ch. 31, sec. 125, provided "that in all cases where the clerk of a county or Superior Court issues process to the county of which he is clerk, it shall not be necessary for him to affix the seal of his office thereto." This provision has been continued, Rev. Code, ch. 31, sec. 63, and is now found in The Code, 1247. The Legislature thought it unnecessary to require a seal in such case, as the officers of the court would be known officially to the citizens of the county, whereas, when beyond its limits, they would not, and their official acts could be recognized only when evidenced by the seal of the court whose officers they were. The rule, then, is that when the process is to be executed within the county where it issued, no seal is required, but if it goes beyond such county the seal is required, and without it the process is void. This difference applies to all precepts or process, such as summons, execution, and the like. This distinction has been sustained by numerous decisions of this Court. Freeman v. Lewis, 27 N.C. 91; Taylor v. Taylor, 83 N.C. 116.
Parties may attend and defend, and this would waive all objections of a formal character, but would not vitalize void process except by amendment without prejudice to third parties. Barnhardt v. Smith, 86 N.C. 473; Davidson v. Land Co., 118 N.C. 368. It was admitted that the commission issued to take the deposition and was taken in Cleveland County at the residence of the witnesses in (616) said county.
Another objection to Julia Patterson's evidence was that she was interested. On cross-examination she was asked by defendant, "Did you have no interest in it?" A. "No, I didn't"; and there was no other evidence to show any interest. Exception overruled.
The third exception was to the evidence of the plaintiff, under The Code, sec. 590. His Honor admitted only the following: "State your name." A. "Aholibamah McArter." "What year is that almanac?" A. "1887." "Is there any mark on that almanac of any kind?" A. "Only what I put on it." "What month is the mark on the almanac?" A. "January." To these rulings the defendant excepted.
We see nothing in the above examination tending to show any "conversation or transaction" with the deceased. It seems to be only a mark by which the witness refreshed her mind as to a certain date of some transaction. It appeared by another witness that the mark was put on the almanac at the time when the money was paid. There is no error.
Affirmed.