Kirk v. Barnhart, 74 N.C. 653 (1876)

Jan. 1876 · Supreme Court of North Carolina

74 N.C. 653

ROSANNA KIRK v. BENTON BARNHART, Adm’r., &c.

A motion to dismiss an appeal, because it does not appear 'that a case-had been made, and served as prescribed by the Code oí Civil Procedure, will not be granted, when an opposing counsel states on oath,, in this eourt, that all the requirements of the C. C. P. were complied, with in the court below.

A plaintiff, as a witness, cannot prove her services rendered her deceased ■ mother, in an action against her mother’s administrator, to recover.' the value of such services.

Civil ActioN tried before Señen cl</., at the July Term, 1875, of Cabarrus Superior Court.

The pleadings were oral, and the ease came up by appeal. from the judgment of a Justice of the Peace.

The plaintiff sued the defendant, as the administrator of" her mother, Susan Seaman, for one hundred and fifty dollars, for services rendered by her to her mother, during the last eighteen months of her life.

The plaintiff was offered ■ as a witness, to prove that her • mother was old and infirm; and that about eighteen months before the death of the latter, the plaintiff and two of her-children had moved to the home of her said mother, to aid is. taking care of her and in nursing and supporting her. This testimony was objected to by the defendant, but was admitted by the court. Defendant excepted.

Defendant also objected to a recovery, on the ground, that no demand was made before suit brought, and that this court had no jurisdiction of the action.

The court overruled these two objections, and submitted the . case to the jury, on the facts proved by the plaintiff and. others; and charged, that as the plaintiff was twenty-one years old, the law presumed she worked for herself; and that the burthen was on the defendant to show that! the services rendered were to be gratuitous and voluntary,,or.reciprocal.

To this charge the defendant excepted, and asked bis Honor to charge: That the relation of the parties rebutted the presumption of a special contract.

Yerdict for the plaintiff. Motion for a new trial; motion refused. Judgment, and appeal by defendant.

Barringer and Mirntgo-nerv, for appellant.

Shipp <6 Bailey, contra.

Rodman, J.

Mr. Bailey, for the plaintiff, moved to dismiss the appeal, because it did not appear, that .a case had been made out by the appellant and served on the plaintiff or his counsel, within five days after the entry of appeal taken, as required by C. C. P., sec. 301. It appeared, however, from the affidavit of Mr. Bai’ringer, that the case had been stated and served in due time on Mr. Bong, one of the attornies for the plaintiff, who resided in the county where the action was tried, and had been returned by him without objection, and filed with the clerk. The motion to dismiss ' the appeal is therefore refused. The motion of defendant for a certiorari is also refused.

The Judge clearly erred in receiving the plaintiff as a witness to prove the services rendered by her to the deceased. C. C. P., sec. 343.

Per Curiam. Judgment reversed and 'venire de novo.