Legal Opinion

Wallington v. . Montgomery

Supreme Court of North Carolina

Decided January 5, 1876PublishedCited by 2 opinions

Civil ActioN, on a bond, beard before Kerr, J., at. Fall Term, 1875, of the Superior Court of Rockingham county. The action was brought to recover $12,000, alleged to be due the plaintiff as assignee of one E. M. Powell. After issue joined, the defendant took the deposition of a non-resident -witness, under a commission, returnable to Fall Term, 1875, and during the term the deposition came, directed to the Clerk, in a sealed envelope.

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Civil ActioN, on a bond, beard before Kerr, J., at. Fall Term, 1875, of the Superior Court of Rockingham county. The action was brought to recover $12,000, alleged to be due the plaintiff as assignee of one E. M. Powell. After issue joined, the defendant took the deposition of a non-resident -witness, under a commission, returnable to Fall Term, 1875, and during the term the deposition came, directed to the Clerk, in a sealed envelope. Notice was served upon plaintiffs counsel to be present at the opening thereof. The plaintiff’s counsel did not attend, hut having examined the witness, he…

1Opinion of the Court

ByNuíi, J.

The refusal of his Honor to pass upon the competency of the evidence and its materiality before the trial, was not the subject of appeal, any more than from his refusal to try or continue a cause, or from his order to allow or disallow an amendment. If in the course of a trial a question is objected to and ruled out by the court as irrelvant, or a witness is rejected as incompetent, an appeal cannot then be taken and the trial arrested, but exceptions are made and the trial progresses.

In the case before us, the appeal was taken on a ruling from which no appeal lay, even had it been…

2Cases cited2 opinions

  1. Childs v. . MartinSupreme Court of North Carolina · 1873
  2. Gray v. . GaitherSupreme Court of North Carolina · 1874

3Cited by2 opinions

  1. Lutz v. . ClineSupreme Court of North Carolina · 1883
  2. Sutton v. . SchonwaldSupreme Court of North Carolina · 1879

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