163 Ga. 894 | Ga. | 1927
Lead Opinion
1. Even though the petition had not been verified at all until the day set for the hearing upon the application for an interlocutory injunction, it was still amendable in this respect; and the court did not err in permitting the petitioner to verify the petition by making her affidavit to the effect that the statement of facts therein contained was true.
2. The exceptions to the admission of evidence are without merit.
(а) The petitioner, who was the administratrix de bonis non cum testamento annexo of her mother, testified that she had made search for an alleged marriage contract executed in 1870, among all the papers of the testatrix, and was unable to find it, and that she believed it was not in existence but had been either lost or destroyed. It appearing from the record that both parties to the alleged marriage contract were dead, the court did not err in admitting, as secondary evidence of the contents of such paper, a certified copy of a record in the office of the clerk of the superior court of the county in which the maker of the instrument died. Civil Code, § 5759.
(b) “In order to the introduction of secondary evidence of the contents of a lost paper, it is only necessary to establish a reasonable presumption of its loss or destruction; and this presumption is held to be established, when the party shows that in a reasonable degree he has exhausted all the sources of information and means of discovery, which the nature of the case suggests, and which were accessible to him.” Harper v. Scott, 12 Ga. 125; Ellis v. Smith, 10 Ga. 252; Molyneaux v. Collier, 13 Ga. 406; Bryan v. Walton, 14 Ga. 185.
3. The petition as a whole was not subject to general demurrer and consequent dismissal. The cause of action was laid in two counts; and even though it were conceded that the first count was for any reason demurrable, the second count was not subject to the alleged infirmities which the demurrer sought to attack, and of itself sufficiently set forth a good cause of action.
4. Upon conflicting evidence the discretion of the judge of the superior court in the granting of an interlocutory injunction will not be interfered with, unless there is a manifest abuse. In the present ease, as the administratrix stood in the place of her intestate, it was not error for the court by the grant of an interlocutory injunction to maintain the status quo of the real estate involved until an adjudication of the rights of property therein.
5. The interests of creditors, if any, in the estate which the administratrix of the decedent claims may be protected at the trial by appropriate intervention on their part.
Judgment affirmed.
Dissenting Opinion
dissenting. On the hearing of the application for injunction, the plaintiff tendered in evidence a certified copy of a marriage settlement between O. H. P. Beall and Mary L. Inman. Counsel for the defendant objected to the introduction of said instrument, on the ground that the original contained the highest and best evidence of its contents. Counsel for the defendant then and there informed the court and counsel for the plaintiff of the existence of the original and its accessibility. The only evidence touching the destruction, loss, or inaccessibility of the original instrument was contained in an affidavit of Mrs. Leslie Francis, the administratrix of Mrs. Beall. She deposed that she had made a careful search of old papers and effects of her testatrix coming into her hands, for the purpose of locating the original of said instrument, that she had been unable to locate said paper, that the same was not in her possession, that she had no knowledge of its whereabouts or of its being in existence, and that to the best of her knowledge it had been either lost or destroyed. Under this instrument Beall was created trustee for all of the property of his wife, and was to have the management and control of it during her life. Fairly construed, the testimony of Mrs. Francis was not sufficient to make admissible the certified copy of this instrument. She simply deposed that she had made a careful search of all the papers and effects of Mrs. Beall, coming into her hands, and that she had been unable to locate this document, that it was not in her possession, and that she had no knowledge of its whereabouts, or that it was still in existence. This statement was evidently based upon the search which she had made for this instrument. She then deposed that to the best of her knowledge the .same had been either lost or destroyed. This conclusion is evidently based upon the above search which she had made. She made no application to the
