Thigpen v. Batts

33 S.E.2d 424, 199 Ga. 161, 1945 Ga. LEXIS 276

• Court: Supreme Court of Georgia
• Decided: March 7, 1945
• Docket: 15105.
• Status: Published

Opinions

Duckwobth, Justice.

1. In this haheas-corpus proceeding brought by the mother for two minor children after her divorce from the father and her marriage to another man, it was error to admit in evidence, over timely objection on the ground that it was hearsay and damaging to the petitioner, a letter written by the father of the petitioner to the defendant in which he stated, “I certainly don’t consider her [the mother] qualified physically, mentally, or morally fit to have full control of those precious little ones.”

2. While the evidence was sufficient to support the judgment awarding custody to the defendant, the paternal grandmother, under the Code, § 74-106, nevertheless it did not demand such judgment, and consequently the error in receiving the inadmissible evidence requires a reversal.

3. The decisions in Stephens v. Crawford, 1 Ga. 574 (44 Am. D. 680), Lee v. Baldwin, 10 Ga. 208, and Murphy v. Justices, 11 Ga. 331 (2), containing language indicating that a reversal will not result from an erroneous admission of illegal evidence, if there is other evidence which supports the judgment, may be explained upon the ground that the other evidence there demanded the judgment. In such case only will the error not require a reversal. Similar language, used in Davis v. Lowman, 9 Ga. 504 (2), was in a case where the sufficiency of the evidence was not passed on by this court, and in fact no brief of the evidence was included in the record, and what was said was clearly. obiter. In Brady v. Little, 21 Ga. 132, the purely negative testimony did not offset the positive testimony as to the fact at issue. The rulings in Matthis v. State, 33 Ga. 24, 31, and Carlisle v. Callahan, 78 Ga. 320 (2 a) (2 S. E. 751), are, under the facts there presented, clearly unsound, and to the extent that they constitute rulings that evidence less than that sufficient to demand the judgment, but enough to authorize it, will prevent a reversal, they are expressly overruled. Town of Adel v. Woodall, 122 Ga. 635 (50 S. E. 481), containing language similar to that here under consideration, involved an application for an interlocutory injunction, and, as stated by this court, on such a hearing there is a radical departure from some 'of the elementary principles of law relating to the admission of evidence; and the facts of the case distinguish it from the present one. Eor other cases to the same effect, see Southern Cotton Oil Co. v. Overby, 136 Ga. 69 (2) (70 S. E. 664); Griffith v. Hapeville, 182 Ga. 333 (4) (185 S. E. 522); State Highway Board v. Baxley, 190 Ga. 292 (2) (9 S. E. 2d, 266) ; Kniepkamp v. Richards, 192 Ga. 509 (9), 521 (16 S. E. 2d, 24); Atlantic Railway Co. v. Cordele, 128 Ga. 293 (2) (57 S. E. 493); Horton v. Fulton, 130 Ga. 466 (4) (60 S. E. 1059); Richmond Cotton Oil Co. v. Castellaw, 134 Ga. 472 (6) (67 S. E. 1126). As to the rule in a temporary-alimony case, compare Gaulding v. Gaulding, 184 Ga. 689 (192 S. E. 724). As instances where the judgment was demanded and the admission of illegal evidence was not cause for a reversal, see Eilis v. Smith, 10 Ga. 253; Lewis v. Adams, 61 Ga. 559 (4) ; Ellis v. Mills, 99 Qa. 490 (4) (27 S. E. 740) ; Johnston v. Coney, 120 Ga. 767 (4) (48 S. E. 373); Darsey v. Darsey, 138 Ga. 584 (75 S. E. 667) ; Martin v. Turner, 170 Ga. 62 (2) (152 S. E. 112); Delray Inc. v. Piedmont Investment Co., 194 Ga. 319 (5) (21 S. E. 2d, 420, 142 A. L. R. 1116).

No. 15105. March 7, 1945. McDonald & McDonald, for plaintiff in error. W. B. Mixon and Philip Newbern, contra.

Judgment reversed.

All the Justices concur, except