Hinton v. Life Insurance

21 S.E. 201 | N.C. | 1895

The Code, 258, permits verification of pleadings to be made before "any judge, clerk of the Superior Court, notary public or justice of the peace." This refers to those officers in this State, and inBenedict v. Hall, 76 N.C. 113, it was held that a verification before a notary public out of the State was insufficient. Thereupon this section was amended (Laws 1891, ch. 140) by inserting after the word "notary public" the words "in or out of the State." The verification in the present instance would therefore have been insufficient under section 258. But The Code, section 633, gives to commissioners of affidavits full powers to take oaths or affirmations in matters "relating to any cause depending in the courts of this State," and every such "affirmation made before him shall be as valid as if taken before any proper officer in this State." And section 640 gives to clerks of courts of record in other states the same powers as are given to commissioners of (25) affidavits.

The verification in this case was made before the clerk of the Hustings Court of Richmond, Va., and is authenticated by his signature and the seal of his court. We are constrained therefore to hold that the verification has been made before a properly authorized officer. For such purposes courts take judicial notice of the seal of the courts of other states, just as they do of the seals of foreign courts of admiralty and notaries public. 1 Greenl., Ev., sec. 479, note 4. The authorities cited to the contrary refer to the proof of the record of a court of another state under the Act of Congress of 1890 and do not apply as to the qualification of an officer of another state to take the verification of a pleading to be used in a court of this State.

The amendment made by the court in the judgment "after the last session of the court, in his room at the hotel, without the consent of the opposing counsel," who indeed was absent, was invalid. Delafield v. ConstructionCo., 115 N.C. 21. Indeed, had this condition been in the judgment originally, or been made by consent, or at a legal time and place, it would of itself have vitiated the judgment, since conditional judgments are invalid. Strickland v. Cox, 102 N.C. 411; In re Deaton, 105 N.C. 59;Hopkins v. Bowers, 111 N.C. 175.

An order allowing an amendment in the pleadings or process upon conditions or terms is valid. Crump v. Thomas, 89 N.C. 241. It is otherwise as to judgments which must be unconditional.

The judgment was only a partial one, not disposing of the whole matter. The Court has repeatedly held that "fragmentary appeals" will not lie. Clark's Code, 2 Ed., p. 563, and cases there collected. Though the appeal must be dismissed for the reason given, we have passed (26) upon the point intended to be presented, as this Court has sometimes, though rarely, done. Milling Co. v. Finlay,110 N.C. 411; S. v. Wylde, ib., 500.

Appeal dismissed.

Cited: Walters v. Starnes, 118 N.C. 844; Barcello v. Hapgood, ib., 727; McGehee v. Tucker, 122 N.C. 189; Ex parte McCown, 139 N.C. 124;Richardson v. Express Co., 151 N.C. 61; Griffin v. Cupp, 167 N.C. 96;Joyner v. Reflector Co., 176 N.C. 277.