Opinion
(Filed 17 March, 1915.)
1. Pleadings — Verification — Judgments.
It is held that the complaint in this case was verified substantially in the words of the statute, and the refusal of the trial judge to render judgment for the defendant on the pleadings was proper.
2. Evidence — Deceased — Transactions, etc. — Trials — Instructions — Expressions of Opinion.
In an action on a note brought by husband and wife against the administrator of the deceased, it is incompetent for the husband to testify that he was present at the time and saw the deceased receive the money for the note, for this is evidence of a transaction with the deceased by an adverse party in interest, forbidden by the statute; but where this testimony has been given without objection, it is not an expression of opinion upon the evidence for the trial judge to state the law to the jury and remark that he would have ruled it out had it been objected to, for this is only a caution to the jury that they should scrutinize his testimony, and does not cast any imputation upon the truthfulness of the witness.
APPEAL by plaintiff from Peebles, J., at October Term, 1914, of PAMLICO.
D. L. Ward for plaintiff.
Guion Guion, Z. V. Rawls for defendant.
Civil action tried upon this issue:
In what amount, if any, is the defendant indebted to Mrs. Kate G. White? Answer: "None."
From the judgment dismissing the action, the plaintiff appealed.
The plaintiffs, W. C. White and Kate G. White, brought this action to recover of the defendant administrator of J. S. White, deceased, the sum of $500, alleged to have been loaned to the defendant's intestate by the feme plaintiff.
(1) The plaintiff moved for judgment on the pleadings because the verification of the answer was insufficient:
Mumford Guynn, administrator of J. S. White, deceased, being duly sworn, deposes and says: That he has read the foregoing answer, and that the same is true of his own knowledge, except as to those matters therein stated on information and belief, and as to those, he believes it to be true. MUMFORD GUYNN.
This verification was duly sworn to before a justice of the peace. We are of opinion that in form it is a substantial compliance with the statute; in fact, it is almost in the words of the statute. McLamb v. McPhail, 126 N.C. 217.
(435) (2) There was evidence offered upon the part of the plaintiff tending to prove that Mrs. White loaned $500, as alleged in the complaint, to the defendant's intestate. The plaintiff's husband was put upon the stand for the plaintiffs and testified without objection that the deceased asked his wife to lend him the $500, and that he saw her deliver him the money, and that all three were present at the time.
The court, among other things, charged the jury as follows: "Mrs. White claims the money was loaned by her to the deceased, Joel S. White, and she introduces her husband, W. C. White, to prove the loan. W. C. White, being a party to the suit, was not a competent witness. If his testimony had been objected to, I would have ruled it out; but as it was allowed to go in without objection, it is your duty to consider it; but in considering it, you must remember that the burden of proof is upon the plaintiff to satisfy you by the greater weight of the evidence that this money was loaned. If you are not satisfied under all the circumstances that the money was loaned, then it is your duty to answer the issue `Nothing.'"
This is excepted to as an expression of opinion upon the part of the judge. We do not think that it can be fairly interpreted as an expression of opinion sufficiently injurious to the plaintiff to justify us in directing another trial. It was a mere caution to the jury that they should scrutinize the testimony of the plaintiff's husband, as a party to the suit and having at least a moral interest in the result.
The fact that his Honor told the jury that if the testimony had been objected to he would have ruled it out as incompetent does not cast any imputation upon the truthfulness of the witness. As a matter of law, the husband, being a party to the action, was incompetent to testify to the transaction between him and his wife and the defendant's intestate. Bunn v. Todd, 107 N.C. 266.
We have examined the other exceptions contained in the record, and find them to be without merit.
No error.