Sutton v. . Walters

Clark, J.: The exceptions based upon the incompetency of John I). Walters as a witness under Section 590 of The Oode are without merit. That Section was analyzed and discussed in Bunn v. Todd, 107 N. C., 266, which has been since cited several times with approval. By reference to that decision, and indeed to the very words of the statute, it will be seen that -though the witness, John D. Walters, is a party to this action and is testifying as to a personal transaction between himself and the intestate of the plaintiff,-this disqualifies him only to testify “ in behalf of himself or a person succeeding to his title or interest.” In the present case he is not testifying in behalf of himself, for he does not contest the judgment against himself, and his interest cannot be affected in any way by this testimony, nor is his testimony “ in behalf of any one succeed *500 ing to bis title or interest.” Whether his co-defendant, who was merely his surety on the bond, had been discharged by an extension of time to himself as the principal debtor was a.matter which in nowise affected'the interest or liability of the witness. Judgment was admitted by him in favor of the plaintiff, and that liability could not be increased or affected should judgment also go against the surety, nor did the surety in any sense “succeed to his title or interest.” Whether or not there was any sentimental consideration moving the principal debtor to wish to absolve his surety from liability was a matter for the jury, like all other questions of bias affecting the credit of a witness, but there was no legal cause rendering him an incompetent witness. The permission of the court to recall a witness after the evidence closed was a matter of discretion in the judge. Olive v. Olive, 95 N. C., 485; Pain v. Pain, 80 N. C., 322; State v. King, 84 N. C., 737. It is for this very reason that additional evidence should be called, if obtainable — that an exception that there is not sufficient evidence to go to the jury must always be made before verdict in order that the defect can be supplied if possible, since the object of the reformed procedure is that cases shall be tried on their merits and parties not lose their rights by a mere inadvertence. This has been repeatedly decided. State v. Kiger, 115 N. C., 746, and numerous cases cited in Supplement to Clark’s Code, p. 89. His Honor submitted to the jury the following issues : 1. “ Hid Alexander Sutton sign the note to Thomas Sutton as surety?” Ans., “Yes.” 2. “Hid Thomas Sutton agree to extend the time of the payment of the note without the knowledge or consent of Alexander Sutton and Shade Wooten ? ” Ans., “Yes.” The issues should have embraced the further query *501 whether such suretyship was known to the plaintiff when he gave the extension of time, but the defendant neither tendered such issue nor excepted to the failure to do so. Had the defendant done so, the court would have had an opportunity to correct what was doubtless an inadvertence with both parties as well as the court, since from the evidence and the charge.it is clear that all parties understood that this question was embraced in the second issue, and indeed the fact that the suretyship was known to the plaintiff was alleged in the answer, and was in evidence for defendant and was not contradicted by any evidence for the plaintiff. Had the other issue been submitted upon the evidence, if believed the jury must have found it for the defendant. The case has gone off upon the very issues of fact and questions of law in actual dispute between the two parties. The judge’s charge, which was as follows, drew the attention of the jury to this matter of the knowledge of the suretyship by the plaintiff even if there had been any conflict of evidence as to the fact. His Honor in charging the jury among other things said : “If you find that Thomas Sutton received interest on the note from John I). Walters before it was due, and that in consideration of the payment of interest in advance by Walters the said Sutton agreed to extend the time of payment without the knowledge or consent of Alexander Sutton and Shade Wooten & Co., and if you find from the evidence that Thomas Sutton, knowing that Alexander Sutton was surety, agreed with Walters to forbear and extend the time of payment, in consideration that Walters would pay the interest on the note before due and in advance, and if the interest was paid as agreed, and said agreement being made without the assent of Alexander Sutton and Shade Wooten & Co., then the said Sutton and Wooten & Co. *502 would be exonerated from all liability, either as sureties or endorsers, by reason of such extension of time.” The charge is correct. Chemical Co. v. Pegram, 112 N. C., 614; Forbes v. Sheppard, 98 N. C., 111; Randolph v. Fleming, 59 Ga., 776; Brandt on Suretyship, Sec. 352. Nor can the motion for judgment, non obstante veredicto, be allowed here, for it was not made below, and no exception therefore taken from its refusal. No points can be taken here (other than errors upon the face of the record proper) which do not appear by exception below, except that the complaint does not state a cause of action, and that the court did not have jurisdiction of the subject matter, (Rule 27,) and numerous cases cited in Clark’s Code, (2nd. Ed.,) pp. 380, 382, 697, and in tlie Supplement to same, pp. 64 and 103. Besides, the motion for judgment non obstante verdicto, had it been made below, should not have been allowed, as it is only granted where the plea confesses a cause of action, and the matter relied on in avoidance is insufficient. Walker v. Scott, 106 N. C., 57. Here, the answer is explicit and avers the knowledge of the suretyship on the part of the plaintiff when fhe forbearance was given. A defect in a judgment is, it is true, an error in the record proper, and may be taken advantage of upon inspection of the record, but such judgment must be construed in reference to the pleadings, evidence and charge, and not with regard to the issues solely; and, so construed, there appears no error. No Error.