Bruce v. Foster

215 S.E.2d 495, 134 Ga. App. 685, 1975 Ga. App. LEXIS 2128

• Court: Court of Appeals of Georgia
• Decided: April 8, 1975
• Docket: 50275
• Status: Published

Opinion

Pannell, Presiding Judge.

This is an appeal from judgment of the court below based on a jury finding that a common law marriage existed between Neva J. Foster and Willie Foster, the deceased; the result of which established her as the sole heir at law of said Willie J. Foster. Held:

1. Enumeration of errors 2, 3 and 4 relate to the sustaining of objections to questions generally as to who was the wife of Willie Foster. The validity of the marriage was the ultimate question of fact to be decided by the jury. The trial judge did not err in excluding questions which involved, as here, the province of the jury. Any answer stating who the wife was would be a conclusion of the witness. Brown v. Brown, 89 Ga. App. 428, 435 (6) (80 SE2d 2).

2. Enumeration of error no. 5 is to the refusal of the trial judge to permit a question over objection. Counsel withdrew the question as the judge was considering the objection. Therefore, there is nothing for this court to pass upon.

3. The evidence was sufficient to support the verdict. The judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Quidian and Clark, JJ., concur. Submitted March 10, 1975 Decided April 8, 1975 Rehearing denied April 30, 1975 Boatright & Boatright, J. Laddie Boatright, for appellants. Preston & Preston, M. L. Preston, for appellee.