Barker v. Blount

63 Ga. 423

• Court: Supreme Court of Georgia
• Decided: September 15, 1879
• Status: Published

Opinion

Warner, Chief Justice.

This was a claim case, on the trial of which, the jury, under the charge of the court, found the property not subject to the fi. fa. levied thereon. A motion was made for a new trial on the several grounds therein set forth, which was overruled, and the plaintiff excepted.

It appears from the evidence in the record, that the plaintiff’s judgment on which the fi. fa. levied on the property was issued, bears date the 19th of January, 1876, and that the claimant was the son of the defendant in fi. fa., who, the 23d day of November, 1869, made a voluntary deed of conveyance to his son, the claimant, to the land-levied on. There was no error in stating to the plaintiff’s counsel that unless ho introduced the deed in evidence it would rule out the parol evidence of the maker of it, “that the consideration of the deed made by him to claimant was love and affection,” said deed having beeu brought into court by the claimant under a notice to produce it, the court stating that it understood the deed to be in evidence before Blount, the witness, testified — the same not being a decision of the court. The evidence was admitted without objection, and if the 'court had ruled it out, whether the plaintiff had introduced the deed in evidence or not, it would have been error. The plaintiff, however, introduced the deed in evidence, and the court made no decision-ruling out the parol evidence. The court’s stating it would rule out the parol evidence which had been admitted without objection, did not compel the plaintiff to introduce the deed; he could have let the court make its decision ruling out the parol evidence, and have excepted to it, but before any decision was made by the court, the plaintiff introduced the deed in evidence himself, and therefore no decision was made upon the question. See 48 Ga., 30.

2. There was no error in ruling out the tax digest of Pike county, containing the tax returns of the defendant Blount for the years L809 and 1870, inasmuch as it does not affirmatively appear for what purpose the same was offered, or what the returns contained, so as to show the relevancy of that evidence.

3. Whilst it is true that the 1st and 2d paragraphs of the 1952nd section of the Code read by the court in its charge to the jury, had no direct application to the question involved in the trial of the case, still it is not readily perceived how the jury could have been mislead by it, the more especially as the court read the 3d paragraph of that section, which was directly applicable to the question under consideration by them.

4. The evidence of Blount on his cross-examination as to the management of Barker’s estate was admissible, on the ground that ho was the plaintiff’s witness, and on his direct examination testified that he was the administrator on that estate and also testified in relation to other matters connected with it.

5. In our judgment there is sufficient evidence in the record to sustain the verdict, and therefore it was not contrary to law, and there was no error in overruling the plaintiff’s motion for a new trial.

Let the judgment of the court below be affirmed.