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612 IN THE COURT OF APPEALS [I7
Harris v. Parker
26 (b) ," and Rule 26 (b) provides that "[ilt is not ground for
objection that the testimony will be inadmissible at the trial
if the testimony sought appears reasonably calculated to lead
to the discovery of admissible evidence." We make no decision
on this appeal as to whether defendants are entitled to an an-swer
to each individual question contained in their interroga-tories,
since the trial court made no rulings in that regard, but
we think it apparent that at least some of the information
sought "appears reasonably calculated to lead to the discovery
of admissible evidence" concerning the crucial fact of divorce
or no divorce in this case.
Plaintiff's affidavit indicates that she and Ben Harris sep-arated
in 1921 and remained separate and apart until Ben's
death in 1970, a period of almost half a century. During at least
a part of that period plaintiff was a nonresident of North Caro-lina,
though exactly where she has resided is not disclosed, In-vestigation
as to whether a person has or has not obtained a
divorce throughout such a long period of time is at best a
formidable task. If it is not known where from time to time the
person resided, any significant investigation becomes well-nigh
impossible. Obtaining answers to their interrogatories would
greatly facilitate defendants' search. Even though their search
may produce no evidence favorable to their cause, they are never-theless
entitled to a fair opportunity to try. The entry of the
summary judgment under the circumstances of this case denied
them that opportunity.
While we rest our decision on the grounds above stated, we
note that the presumption recognized in this State in favor of
the validity of a second marriage, Clzalrners v. Womack, 269
N.C. 433, 152 S.E. 2d 505; Kearn,ey v. Thomas, 225 N.C. 156,
33 S.E. 2d 871 ; Annotation, 14 A.L.R. 2d 7, may have been alone
sufficient to require submission of this case to the jury.
Reversed and remanded.
Judges VAUGHNa nd GRAHAMc oncur.
Object Description
| Title | North Carolina Court of Appeals Reports [v.017, Fall Session Session 1972 - Spring Session 1973] |
| Creator | North Carolina. Court of Appeals. |
| Date | 1973 |
| Subjects | Law reports, digests, etc.--North Carolina; Court records--North Carolina |
| Place | North Carolina, United States |
| Description | Volume 17, Fall Session Session 1972 - Spring Session 1973. Cited as 17 N.C.App. The North Carolina Court of Appeals Reports are the official report of opinions of the North Carolina Court of Appeals. Includes cases and other information about the courts of North Carolina. |
| Publisher | Court of Appeals of North Carolina |
| Agency-Current | North Carolina Court of Appeals, Judicial Department |
| Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
| Collection | North Carolina State Documents Collection. State Library of North Carolina |
| Type | Text |
| Language | English |
| Format | Reports; Legal documents |
| Digital Characteristics-A | 36.1 MB; 820 p. |
| Serial Title | North Carolina Court of Appeals Reports |
| Digital Collection | North Carolina Digital State Documents Collection |
| Digital Format | application/pdf |
| Pres File Name-M | pubs_serial_courtofappealsreports_vol_017.pdf |
| Pres Local File Path-M | \Preservation_content\StatePubs\pubs_law\images_master\ |
| OCLC Number-Original | 1681248 |
Description
| Title | Page 636 |
| Full Text | 612 IN THE COURT OF APPEALS [I7 Harris v. Parker 26 (b) " and Rule 26 (b) provides that "[ilt is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence." We make no decision on this appeal as to whether defendants are entitled to an an-swer to each individual question contained in their interroga-tories, since the trial court made no rulings in that regard, but we think it apparent that at least some of the information sought "appears reasonably calculated to lead to the discovery of admissible evidence" concerning the crucial fact of divorce or no divorce in this case. Plaintiff's affidavit indicates that she and Ben Harris sep-arated in 1921 and remained separate and apart until Ben's death in 1970, a period of almost half a century. During at least a part of that period plaintiff was a nonresident of North Caro-lina, though exactly where she has resided is not disclosed, In-vestigation as to whether a person has or has not obtained a divorce throughout such a long period of time is at best a formidable task. If it is not known where from time to time the person resided, any significant investigation becomes well-nigh impossible. Obtaining answers to their interrogatories would greatly facilitate defendants' search. Even though their search may produce no evidence favorable to their cause, they are never-theless entitled to a fair opportunity to try. The entry of the summary judgment under the circumstances of this case denied them that opportunity. While we rest our decision on the grounds above stated, we note that the presumption recognized in this State in favor of the validity of a second marriage, Clzalrners v. Womack, 269 N.C. 433, 152 S.E. 2d 505; Kearn,ey v. Thomas, 225 N.C. 156, 33 S.E. 2d 871 ; Annotation, 14 A.L.R. 2d 7, may have been alone sufficient to require submission of this case to the jury. Reversed and remanded. Judges VAUGHNa nd GRAHAMc oncur. |
