Kirk v. . Barnhart

Decided January 5, 1876

Supreme Court of North Carolina · decided 1876-01-05

Civil ActioN tried before Señen cl The pleadings were oral, and the ease came up by appeal. from the judgment of a Justice of the Peace. The plaintiff sued the defendant, as the administrator of her mother, Susan Seaman, for one hundred and fifty dollars, for services rendered by her to her mother, during the last eighteen months of her life.

Cited by 1 later decisions — most recently February 1951

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1876-01-05

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Rodman, J.

¶1 Mr. Bailey, for the plaintiff, moved to dismiss the appeal, because it did not appear, that .a case had been made out by the appellant and served on the plaintiff or his counsel, within five days after the entry of appeal taken, as required by C. C. P., sec. 301. It appeared, however, from the affidavit of Mr. Bai’ringer, that the case had been stated and served in due time on Mr. Bong, one of the attornies for the plaintiff, who resided in the county where the action was tried, and had been returned by him without objection, and filed with the clerk. The motion to dismiss ' the appeal is therefore refused. The motion of defendant for a certiorari is also refused.

¶2 The Judge clearly erred in receiving the plaintiff as a witness to prove the services rendered by her to the deceased. C. C. P., sec. 343.

¶3 Per Curiam. Judgment reversed and 'venire de novo.