20 S.E. 710 | N.C. | 1894
The record which was introduced in evidence to sustain the plea of the pendency of another action does not effect that object. In that action there are a number of plaintiffs, of which (528) the plaintiff J. M. Propst is one. That controversy is concerning a tract of land, of which the land in dispute here is only a part. The rule is that the same plaintiff shall not sue the same defendant twice for the same thing, and when the parties are the same and the thing sued for is the same, the right shown in both actions must be identical. Casey v.Harrison,
We think that the evidence which the plaintiff was allowed to introduce in order to establish the fact that Adam Overwenters' will was probated, and also its contents, should have been excluded. It seems to us to have been mere hearsay. He was allowed to tell what the clerk told him. The fact that the one whose unsworn statement was thus allowed to go to the jury as evidence was the keeper of the record, the contents of which it is proposed to establish, does not afford a sufficient reason for the violation in this instance of the well-settled rules governing the admission of testimony. No witness, so far as this record shows, was produced who could say upon oath and subject to cross-examination, that the will of Adam Overwenters was ever recorded in Burke County. Indeed, so far as appears, no witness was called who testified that any such will ever existed. We do not think that the plaintiff should *362
(529) have been permitted to prove the existence of this will, its probate, and its contents, by the mere statements of the clerk. To allow this would be to give to his oral communications the effect which is given by law to his solemn certificate, for the use of which as evidence the statute provides. Nelson v. Whitfield,
New trial.
Cited: Jones v. Flynt,