Carr v. . Bizzell , 192 N.C. 212 ( 1926 )

The exceptions addressed to the admission and exclusion of evidence, call for no particular elaboration. They are without substantial merit and cannot be sustained.

The ones mainly stressed on the argument relate to the admission of declarations against interest, made by owners of the land, under whom the defendant claims, while they, the declarants, were in possession of the premises asserting ownership thereof.

It appears that the declarations, quoted by the witnesses, were made before any dispute arose over the boundary line; that they were against the pecuniary or proprietary interests of the declarants, who had no probable motive to falsify the facts declared, and who were cognizant of the meaning and effect of said declarations at the time they were made; and that the declarants are now dead. This rendered the evidence competent. Roe v.Journegan, 175 N.C. 261.

The admissibility of such evidence was fully discussed in the case ofSmith v. Moore, 142 N.C. 277, where it was said in an elaborate opinion by Walker, J., reviewing the authorities on the subject, that declarations against interest, as to facts relevant to the inquiry, are admissible in evidence, even as between third parties, when it appears: (1) That the declarant is dead; (2) that the declaration was against his pecuniary or proprietary interest; (3) that he had competent knowledge of the fact declared; and (4) that he had no probable motive to falsify the fact declared. The rulings in the instant case come squarely within the authorities on the subject.

The trial court instructed the jury that as the plaintiffs were the actors, the burden of proof was on them throughout to establish by the greater weight of the evidence the location of the true dividing line between the lands of the plaintiffs and the defendant. In this, there was no error. Hill v. Dalton, 140 N.C. 9. The burden of proof cannot rest on both parties at the same time. Speas v. Bank, 188 N.C. 524; Tillotson v.Fulp, 172 N.C. 499; Garris v. Harrington, 167 N.C. 86; Woody v.Fountain, 143 N.C. 66.

The remaining exceptions are equally untenable.

Upon the call of the case for argument in this Court, 16 September, 1926, the defendant lodged a motion for a new trial on the ground of newly discovered evidence, based on an affidavit taken 4 January, 1926. No notice was given to the opposing side of appellant's intention to make said motion, and for this reason, if no other, the motion must be denied. Speaking to a similar situation in Herndon v. R. R., 121 N.C. 498, Clark,J., said:

"It is proper to say that when a motion for a new trial for newly discovered evidence in this Court is contemplated notice of such motion should be always given the other side and a copy of the affidavits served therewith. The respondent should also serve a copy of his counter-affidavits, if time permits. Thus, there will be no surprise on either party, and the Court will be put in full possession of the facts. The appellant should give this notice at least ten days before the beginning of the call of the district to which the cause belongs, unless the information comes to him after that time, when the Court may shorten the notice and, if necessary, give the respondent time to file counter-affidavits. Code, sec. 595. New trials for newly discovered evidence are not favored in the trial court or on appeal, and the party moving on that ground must not only negative laches in himself in discovering the evidence relied on, but must give reasonable notice to the other party of the motion based thereon."

After a careful and painstaking investigation of the record, we are convinced that no reversible or prejudicial error was committed on the trial of the cause. The verdict and judgment will be upheld.

No error.