Vann v. . Lawrence

Clark, J.: The Code, § 580, provides that “ a party to an action may be examined as a witness by the adverse party * * * either at the trial, or conditionally, or upon commission.” The next section provides that “ the examination, instead of being had at the trial, as provided in the preceding section, may be had at any time before the trial, at the option of the party claiming it, before a Judge or Clerk of the Court, on a previous notice to the party to be examined, or any other adverse par.ty, of at 'least five days, unless for good cause shown the Judge shall order otherwise.” Nothing in these two sections, or in the succeeding sections on that subject, 582, 587, suggests that leave to examine the opposite party must be obtained. On the contrary, the examination is treated as a right to be exercised before trial “ at the option *34 of the party claiming it.” The provision, “ unless the Judge orders otherwise,” applies to the length of notice which he can make less than the five days prescribed. It is true that it is held in Coates v. Wilkes, 92 N. C , 376, and in Hudson v. Jordan, 108 N. C., 10, that this proceeding is a substitute for the old bill of discovery; that is to say, it serves the same purpose. But it is a substitute for the former proceeding, and not the same. This is explicitly stated in section 579. Helms v. Green, 105 N. C., 251. In the bill of discovery leave was required to obtain the examination of the opposite party, but it -was almost a matter of course, and possibly was, therefore, left out of the new procedure as a useless formality. That the omission was intentional, may be seen by reference to section 578, immediately preceding, in regard to the inspection and copy of books, papers, &c., of the adverse party, which can only be had upon the order of the Court, made after due notice. The appeal is premature. . To stop the trial of a cause, pending an appeal to this Court, upon every isolated question of practice, or the admissibility of evidence, or the competency of a witness, and the like, would indefinitely protract litigation and swell its cost. Guilford County v. Georgia Company, 109 N. C., 310, and cases there cited. The defendant in the present case would have lost none of his rights, had he noted his exception and have proceeded with the trial. As the question before us is presented for the first time, we have, following the precedents cited in Wylde’s case, 110 N. C., 500, passed upon it, but, none the less, it must be entered. Appeal dismissed.