Blalock v. Whisnant , 216 N.C. 417 ( 1939 )

Winborne, J.

Two questions arise on this appeal:

1. Did the court err in excluding as evidence the testimony of Mark Squires, now deceased, given in former hearing in this action before judge of Superior Court when considering motion for judgment by default and inquiry?

2. Is the evidence of plaintiffs sufficient to take the case to the jury.

Both questions must be answered in the affirmative.

1. The ruling of the court in excluding the testimony of Mark Squires, since deceased, appears to be based on insufficiency of proof of the record in which it is incorporated, rather than its incompetency. The question is controlled by the decision in Chemical Co. v. Kirven, 130 N. C., 161, 41 S. E., 1. There the testimony of a deceased witness on former trial as contained in the statement of case on appeal made out by defendant’s counsel and signed by counsel for both plaintiff and defendant was held to be competent. Here the witness Wall described the details of arriving at statement of case on appeal, and says Exhibit B “is the agreed case on appeal.” Exhibit A is a copy. However, defendant contends in brief filed in this Court that the proper proof of the case on appeal containing transcript of the testimony is by certificate as required by the statute, C. S., 1779, and c. S., 1780. This contention probably applies to Exhibit A, but not to Exhibit B, as these statutes relate only to copies of public records. The contents of a public record may be proven in any court by the original record itself. State v. Voight, 90 N. C., 741; Iron Co. v. Abernathy, 94 N. C., 545. See, also, Riley v. Carter, 165 N. C., 334, 81 S. E., 414, where the Court said: “While certified copies of records are admitted in evidence, the originals are not thereby made incompetent.”

2. The evidence, viewed in the light most favorable to plaintiffs, as we must do when considering demurrer to the evidence, C. S., 567, is sufficient to take the case to the jury. The probative force of it is a matter for the jury in determining the issues raised by the pleadings. As the case goes back for a new trial, we refrain from a discussion of the evidence.

For errors here indicated, let there be a

New trial.