{ "id": 8661011, "name": "JUSTICE v. GALLERT", "name_abbreviation": "Justice v. Gallert", "decision_date": "1902-12-02", "docket_number": "", "first_page": "393", "last_page": "396", "citations": [ { "type": "official", "cite": "131 N.C. 393" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "108 N. C., 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651316 ], "opinion_index": 0, "case_paths": [ "/nc/108/0571-01" ] }, { "cite": "125 N. C., 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275221 ], "opinion_index": 0, "case_paths": [ "/nc/125/0696-01" ] } ], "analysis": { "cardinality": 342, "char_count": 5933, "ocr_confidence": 0.419, "pagerank": { "raw": 1.016259193401695e-07, "percentile": 0.543587483285705 }, "sha256": "b638faea903e4568aeab2daad7387aeba4958d7a4999dcf0c9d8ce03f98003ec", "simhash": "1:0a78cc34dc958fce", "word_count": 1052 }, "last_updated": "2023-07-14T20:56:51.027382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JUSTICE v. GALLERT." ], "opinions": [ { "text": "Clark, J.\nThe appellant properly concedes that \u201cthe requests for instruction having been oral, his exception for failure to charge, as tasked, can not be sustained. The statute is explicit that \u201cthe Judge may disregard them.\u201d Code, Sec. 415.\nThere was no request for the Judge to put his instructions in writing (Code, Sec. 414), and the case on appeal states that he did not do so, but that he jotted down some disconnected notes' of his charge, in which notes, as written, it appears that he instructed the jury, on a certain state of facts, to answer \u201cYes,\u201d which was erroneous; but. the Judge states in the case on appeal that in fact he told the jury, upon that state of facts, if found, to> answer \u201cNo.\u201d The charge was not handed to the jury, and the material matter is what was said to them, and we are bound by the Judge\u2019s statement of fact. The counsel for. the appellant, in a letter to the Judge, incorporated in the case, says he has no personal recollection how the Judge stated it to the jury, and that if he said \u201cYes,\u201d he is satisfied it was a clear inadvertence. As the Judge said to the jury \u201cNo,\u201d the inadvertent entry on his notes \u201cYes\u201d could do no harm. If the charge containing the word \u201cYes\u201d had been handed to the jury (Laws 1885, Chap. 137; Clark\u2019s Code, 3d Ed., Sec. 414), this would have been reversible error, though the Judge had orally said \u201cNo.\u201d and this though the \u201cYes\u201d in the written charge was a mere inadvertence. Again, if the charge had been written out at request under The Code, Sec. 414, it should have been signed and filed with the Clerk. This would have made it \u201cpart of the record,\u201d and this would control any statement in the case on appeal. State v. Truesdale, 125 N. C., 696.\nIt was not error to omit to charge the jury as to the length of time that would be a statutory bar. An omission to charge on a given point is not error, unless there is a prayer to instruct the jury thereon. Clark\u2019s Code, (3d Ed.), page 514, and numerous cases there collected. Besides, the case on appeal states, \u201cThe case was presented to the jury by both parties on the question of the statute of limitations, on the ground that if the defendant administrator had recognized the claim, it was not barred, and if he had not, that it was barred, and this the Court explained to the jury.\u201d So there was no dispute 'as to the length of time.\nThe Court instructed the jury: \u201cIf Mrs. Forney presented this claim to the administrator and demanded payment, and he admitted that the amount was due and promised to pay it, you will answer the issue \u2018No.\u2019 \u201d And further: \u201cThe recognition of the amount by the administrator must be positive and unconditional.\u201d The defendant excepted on the ground that there was no evidence to support these hypotheses. Upon that exception we need consider, of course, only the evidence for the plaintiff. E E. Tate, son-in-law of the plaintiff\u2019s testatrix, testified that within a year after the qualification of the defendant as administrator, he heard the defendant tell Mrs. Forney (plaintiff\u2019s testatrix) that when he could get the money he would pay her; that this promise was made in reference to this money; also, that the defendant had made him the same promise six or eight months after the death of the defendant\u2019s intestate, and that the defendant then stated that he knew that his' intestate had the money (alleged to have been deposited with him by plaintiff\u2019s testatrix) and that it was a mystery to him what became of it. There was no dispute as to the amount. The controversy was as to whether the administrator had so acted as to bar the running of the statute.\nThis was sufficient evidence to go to the jury. In Stonestreet v. Frost, 123 N. C., at pages 646 and 647, it is said that it is a sufficient \u201cfiling,\u201d under The Code, Sec. 164, when the claim is presented, within the proper time, to the personal representative, and he acknowledges the validity of the debt. \u201cThe creditor can never compel the administrator to \u2018string\u2019 the claim. He has done his part when he has presented it to the administrator with sufficient certainty as to the nature and amount of the debt, and the admission of its validity by the administrator dispenses with any formal proof thereof. When he admitted the validity of the judgment, he admitted the correctness of the amount. There was nothing else to prove.\u201d To similar purport, Woodlief v. Bragg, 108 N. C., 571; Turner v. Shuffler, Ibid., 642.\nIn this case, there was no dispute as to the amount which, if due at all, was a sum collected on a judgment in favor of Mrs. Forney, plaintiff\u2019s testatrix, by defendant\u2019s intestate, a lawyer, and left with him for investment, to-wit, $705, less $150, which was thus invested by him for her. It is not sought in this action to fasten any liability upon the defendant individually.\nNo Error.", "type": "majority", "author": "Clark, J." } ], "attorneys": [ "Eaves & Rucker, for the plaintiff.", "McBrayer & Justice, for the defendant." ], "corrections": "", "head_matter": "JUSTICE v. GALLERT.\n(Filed December 2, 1902.)\n1. INSTRUCTIONS \u2014 Oral\u2014Judge\u2014The Code, Sec. 415.\nTbe trial judge may disregard an oral request for instructions.\n2. INSTRUCTIONS \u2014 Appeal\u2014Case on Appeal \u2014 The Code, See. 4H-\nA statement of the trial judge as to what the instructions to the jury, were, where orally given, and in the absence of a request that they be put in writing, is binding on appeal.\n3. INSTRUCTIONS \u2014 Prayer for.\nAn omission to charge on a given point is not error, unless there is a prayer to instruct thereon.\n4. EXECUTORS AND ADMINISTRATORS \u2014Claim \u2014Filing \u2014The Code, Sec. 164-\nThe admission of the validity of a claim by an administrator, where presented within proper time, dispenses with any formal proof thereof.\nAction by M. Ii. Justice, executor of Emily Forney, against Solomon Gallert, administrator of J. A. Forney, heard by Judge F. D. Winston and a jury, at June (Special) Term, 1902, of the Superior Court of Rutherford County. From a judgment for the plaintiff, the defendant appealed.\nEaves & Rucker, for the plaintiff.\nMcBrayer & Justice, for the defendant." }, "file_name": "0393-01", "first_page_order": 431, "last_page_order": 434 }