King v. Thompson

59 Ga. 380

• Court: Supreme Court of Georgia
• Decided: August 15, 1877
• Status: Published

Opinion

Jackson, Judge.

After the jury had been charged with this case, and had been out all night, the court recalled them and asked them about what they differed; and being answered, about a question of fact in respect to the testimony of a witness, court had that witness recalled, and permitted the jury to ask him “whether the Hawkinsville Bank & Trust Company had any interest in the note sued on ? ” To which the witness replied, “that it had not a particle.” The foreman then asked, “ had the bank any interest at the time of suing out this attachment % ” To which the witness replied, “ that it had none whatever.” This was all done over defendant’s objection. Defendant, now plaintiff in error, then proposed to cross-examine the- witness, which was refused ;■ and then to introduce other evidence on the point of interest in the bank, which was also refused.

This course pursued by the presiding judge, is assigned for error.

1. We think that the court erred. It would be a most dangerous practice, after argument had closed, and the charge on the law of the case, as applicable to the facts' proven, had been given, to permit a witness to add to, or vary, or explain, or repeat, his testimony.

In this case, the court certifies that it only intended to elicit froln the witness what he had testified before; but certainly, the questions’ propounded by the jury were-not confined to that. If they had been, it would have been error, in our judgment; but the questions here asked were as to a fact, without regard at all to what the witness had before sworn, and the answers were substantive and distinct facts, without respect to the prior testimony of the witness, which was clear and manifest error.

2. After this had been allowed, the defendant below was not permitted to cross-examine at all, which was a still greater error and injustice to her, as we think.

But the error was in recalling the.>witness' at all, after' the jury had gone out with the case. We know of no practice-or authority .in óur courts for it, and we are unwilling to open the door to such perjury as might result-from it. Before the jury are charged with the case, and retire to consider it, the witness may be re-cálled, as in 19 Ga., 220, but afterwards he ought ndt, after he has got a clue to what is needed, be allowed to amend what he has sworn. Of course, this is meant as no insinuation or intimation as to the witness in this case, but is mere argument of what might result from the practice.

As to right of cross-examination, see Code, §3864.

It should have been allowed. It was the legal right of the defendant, as this witness was called against her, in the language of section 3864-of the Code, thoroughly • to sift him as to what he had sworn.

3. But did this hurt the defendant? We think it did.' If the bank was interested, the bank director, also a stockholder, and interested deeply in the bank,-was not competent to sit on the proceedings to take out the attachment. The solvency of the securities and the sufficiency of the bond had to be passed upon by him, and yet he was judge of the county court, and acted in issuing the attachment in a case in which he was interested, if the tank had an interest; and the pleadings made the issue, and ■ that issue was on trial, that the bank director, being a stockholder, acted as a judidicial officer in passing upon these questions. This was illegal. See Code, §205; 37 Ga., 678.

It is true that we have held that a person interested may do a mere ministerial act, as taking an affidavit in a distress warrant for rent, where no judgment as to the conditions precedent to the issue of the warrant were called into requisition (see Thornton vs. Wilson, 55 Ga., 607); but this is a different matter, requiring the exercise of judgment and discretion in taking the bond, etc., etc.

4. Whether hr not this lady’s separate estate was bound for this debt will depend, we think, upon whether or not the note was to get money for a venture of her own, or whether she signed as surety for her husband in his business, or to pay his debts. If either of the latter considera■tions induced her to sign it, her separate estate is not liable. Code, §1783. And this does not conflict with the views of this court in 51 Ga., 293, where, on an application for an injunction, this lady’s estate and rights and liabilities were in question. The note, with her signature alone to it, or even with her husband, may be ¡prima facie evidence that she wished the money for herself, but it could be rebutted by all the facts of the case appearing on the note, or otherwise.

5. The declaration in attachment we think sufficient. It might have been better to pray judgment in attachment in the declaration, as intimated in Mehring vs. Charles, 58th Ga. R., 377; biit in that case there was no , averment that any attachment had ever been sued out, and no reference to it at all. In this case, the averment is distinct that the declaration is predicated on the attachment, that the attachment is returnable to a certain (term of the court and pending therein. It is sufficient, when construed in connection with .the attachment described therein, and we affirm the ruling which so held it.

The judgment, however, overruling the motion for a now trial is reversed on the ground that the court erred in recalling and re-examining the witness, under the circumstances disclosed in the record.

Judgment'reversed.