McArter v. . Rhea

Citations

• 30 S.E. 128
• 122 N.C. 614
• 1898 N.C. LEXIS 315

Syllabus

<p>Action on Contract — Depositions—Clerk of Superior Court — Seal of Office — Process—Waiver of Objections— Witness, Interested — Evidence.</p> <p>1. When a commissioner to take depositions or any other process is issued to he executed within the county where it is issued, no seal is required to he affixed thereto; otherwise, when it is to be executed outside of such county, for, without the seal, it is void. (Clark, J., dissents).</p> <p>2. Where a party attends upon and takes part in taking depositions, he thereby waives all objections of a formal character, hut a void process will not be vitalized unless there is an amendment without prejudice to third parties.</p> <p>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.</p> <p>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.</p>