39 S.E.2d 51 | Ga. | 1946
1. On an application for a charter under the Banking Act, a judge is not disqualified because related within the prohibited degree to one who owns an interest in the stock of another banking corporation which is not a party to the litigation, but presently carrying on a banking business in the city where the proposed bank is to be located, and where the only interest that the existing corporation has is the probable loss of income through competition if a charter be granted. A judge is not disqualified because he is interested in the subject to be decided, where he has no direct and immediate interest in the judgment to be pronounced. To work a disqualification, the interest must be a direct, certain, and immediate interest, and not one which is indirect, incidental, or remote.
2. On refusal of the Superintendent of Banks to issue a certificate authorizing the incorporation of a bank, the aggrieved applicants may file a proceeding in the nature of a mandamus in the superior court of the county in which such bank is sought to be incorporated. The issues made by such a proceeding shall be determined by the trial judge, and if from the evidence he is of the opinion that the certificate has been wrongfully or improperly refused or withheld, and that the facts and circumstances authorize and require the granting of the certificate, he shall render an order, judgment, or decree directing its issuance. The statute in such cases does not contemplate or provide for a trial by jury.
3. Since the question whether the establishment of a new bank in a named locality will be of public convenience and advantage is necessarily a matter of opinion and not of fact, a non-expert witness, after stating the facts on which it is based, may express his opinion as to whether or not the granting of a charter to a proposed new bank would be advisable from the standpoint of convenience and advantage.
4. A plaintiff is entitled to prove everything alleged in his petition upon which he is permitted to go to trial without objection on the part of the defendant, either as to its form or its substance.
5. Hearsay evidence is that which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. Testimony given by a witness, to the effect that he *145 had interviewed a large number of people residing in the community where a proposed new bank was sought to be established and they were in favor of the bank, was objectionable as hearsay, and on timely and proper objection should have been excluded.
6. The 25th assignment of error is not well taken. The evidence to which it refers, and which was allowed over the defendant's objection, was directly responsive to a question propounded by his counsel, which was in line with other questions immediately preceding it.
7. The 26th and 27th assignments of error are without merit.
8. Testimony by the Superintendent of Banks that certificates for charter of various banks had been previously issued by him, giving the established banking facilities and populations of localities where the certificates were issued, is relevant upon cross-examination.
"9. Pierce County is a progressive county, its farmers fast adopting the newest agricultural methods and practices. It has an area of 342 square miles, a population of 11,800 according to the census of 1940, and an estimated population of 13,000 at the present time, and a public road mileage in excess of 850 miles. The county is traversed by two divisions of the Atlantic Coast Line Railroad. Pierce County received from taxes from property returned for taxation for the years of 1944 and 1945, as follows: 1944, $68,847.82; 1945, $83,747.74; and the tax valuation of property in Pierce County was $2,079,130 for the year 1944, and $2,344,295 for the year of 1945. Pierce County is one of the largest tobacco-producing counties of the State, and its people in addition to farming are engaged in the naval-stores industry, sawmilling, manufacturing, and mercantile businesses.
"10. Among other businesses, there are located in Blackshear one shoe factory, one steam laundry, one fertilizer-manufacturing plant, one ice-manufacturing plant, one meat-curing and cold-storage plant, two feed mills, three wood and fuel yards, five tobacco warehouses, three live-stock retail stables, one live-stock auction market, in addition to grocery store, dry-goods stores, hardware stores, and building-material store; there are fifty-six commercial businesses in Blackshear doing approximately three-million-dollars business annually. In addition, there are located in Blackshear and Pierce County, and in the territory which would be served by 'Peoples Bank': two dairies, two cabinet shops, two canning plants, five cotton gins, one concrete-block-manufacturing plant, eight sawmills, *147 three lumber-planing mills, several naval-stores stills, and a large number of other businesses. Blackshear received in taxes in 1944 the sum of $21,424.20 on a tax valuation of $1,027,502, and in 1945, $19,118.42 on a tax valuation of $980,958."
The defendant admitted that an application for charter had been filed; that he had been served with a copy of the same, and, after investigation, had found the character and general fitness of applicants satisfactory, but denied under all existing facts that the proposed bank would be of public convenience and advantage. He insisted that the present banking facilities of Blackshear and the county were adequate, and contended that the establishment of the proposed bank was neither expedient nor desirable from a standpoint of good banking principles. He admitted that Blackshear was the trade center of a large agricultural territory, and that the major part of the section's fertilizer, seed, mules, hardware, tobacco flues, supplies, and other articles are bought there, but denied that Blackshear Bank and the other corporations affiliated with it by reason of a common ownership of stock lead to the creation of a monopoly. For want of sufficient information, he neither admitted nor denied certain statistical information alleged with reference to the area of the county, its road mileage, taxes collected annually, etc. He insisted that a full and fair investigation had been made, and that the establishment of the proposed bank would not be advisable from the standpoint of good banking practices.
On the call of the case for trial, a motion was made to disqualify Honorable Walter Thomas, who then presided as trial judge, because of his relationship to one (his wife) who owned an interest in stock of Blackshear Bank. It was insisted that the wife of Judge Thomas owned an interest in this stock of Blackshear Bank formerly held by her deceased father, W. S. Davis, and that this stock was still owned by his estate. Judge Thomas admitted that his wife then owned an interest in the Davis stock, but declined to disqualify himself for that reason.
Prior to the introduction of evidence, the defendant made a written demand that the issues be tried by jury, insisting that there were issues of fact made by the pleadings. The demand was overruled. 1. We deal first with the qualification of the trial judge. It is insisted that, while Blackshear Bank was not a party to the proceedings, it had such a pecuniary interest in the outcome of the case that the trial judge should have disqualified himself on a motion made for that purpose. If disqualified, it was because of his relationship, within the prohibited degree, to one who had an interest in stock of Blackshear Bank. It was not disputed that the wife of the judge owned, at the time of trial, an interest in stock of Blackshear Bank. "No judge . . shall sit in any cause or proceeding in which he is pecuniarily interested, nor preside, act, or serve, in any case or matter, when such judge is related by consanguinity or affinity to any party interested in the result of the case or matter, within the sixth degree, as computed according to the civil law." Code, § 24-102. Not being a party to the case, we must discover from the record how the existing bank may be affected by the establishment of the proposed bank. It is earnestly insisted by the plaintiff in error that the nature of the charges made against Blackshear Bank were so serious that it was necessary for that bank to defend itself. Yet, so far as the record here show, Blackshear Bank took no active part in the case save only to have a few of its patrons write a letter to the Superintendent of Banks during the course of his investigation, suggesting that establishment of the proposed bank would not be advisable. However, we have not overlooked the fact that counsel for Blackshear Bank appeared with the Department of Law as counsel of record for the Superintendent of Banks; and we think that counsel for the plaintiff in error clearly express in their brief the real opposition to the establishment of the proposed new bank, as follows: "The evidence introduced on defendant's motion and which was uncontradicted showed that there was only one bank in the City of Blackshear, and if a new bank was established, the business of the Blackshear Bank would necessarily be affected by reason of withdrawal of deposits from the Blackshear Bank and transfer of same to the new bank, and by reason of loss of interest on loans which would be made by the new bank rather than the existing bank, and by loss of exchange on checks. We do not see how under these facts it can be said that the loss which the present bank would incur by reason of the establishment of the new bank would not be pecuniary." *149
We think that the record clearly discloses that the only possible interest which Blackshear Bank had in the case was the loss of business which it might suffer through legitimate competition should the proposed new bank be established. Would such an interest in the outcome of the litigation work a disqualification of the trial judge because of his relationship to one who had an interest in stock of the affected bank? We think not. "To work a disqualification, the interest must be a direct, certain, and immediate interest, and not one which is indirect, incidental, or remote. A judge is not disqualified because he is interested in the question to be decided, where he has no direct and immediate interest in the judgment to be pronounced." 30 Am. Jur. 773, § 57. "The interest must be a direct, real, and certain interest in the subject-matter of the litigation; not merely indirect, or incidental, or remote, or contingent, or possible. It is not sufficient . . that he owns land on a stream next below plaintiff who is suing to enjoin the pollution of the stream." 33 C. J. 994, § 137. To work a disqualification of the judge, "the liability or pecuniary gain or relief to the judge must occur upon the event of the suit, not result remotely in the future from the general operation of laws and government upon the status fixed by the decision." Piuserv. Sioux City,
2. It is insisted that the pleadings presented issues of fact which should have been submitted to a jury for determination. The plaintiff in error, as defendant in the lower court, prior to the *150 introduction of any evidence, made a written demand for a jury trial, stating that there were issues of fact involved. To determine this question, we must examine and construe the Banking Act of 1919 (Ga. L. 1919, pp. 135, 187). The Code, § 13-1701, which is taken from that act, provides: "In the event the Superintendent of Banks should refuse to issue any permit authorizing the incorporation of any bank . . the person or persons affected by such failure or refusal . . may institute appropriate proceedings in the nature of a mandamus against the Superintendent in the superior court of the county in which such bank is sought to be incorporated." Section 13-1702, also a part of the Banking Act, declares: "On the trial of any such cause the superintendent shall have the right to introduce evidence to sustain or tending to sustain his action or refusal to act in the premises, and if from the evidence in the case the court is of the opinion that such permit, or authority, or certificate has been wrongfully or improperly refused or withheld by the superintendent, and that the facts and circumstances authorize and require the granting of such permit, authority, or certificate . . the court shall render an order, judgment or decree directing the Superintendent of Banks to issue such permit, authority, or certificate."
It will be seen that the remedy provided for the aggrieved applicants for charter in the above two Code sections is an original suit in the superior court in the nature of a mandamus. It is not an action to compel the superintendent to act, because he has already acted; nor an appeal, because there is no judgment of a tribunal from which an appeal can be taken. It is a special proceeding, the subject-matter of which is the refusal of the certificate of charter in the circumstances of the particular case, as they actually exist, whether or not they were considered by the Superintendent of Banks. DuBose v. Gormley,
Article 6, section 18, paragraph 1, of the Constitution of this State (Code, § 2-4501) declares that "the right of trial by jury, except where it is otherwise provided in this Constitution, shall remain inviolate." This provision has been uniformly construed as not conferring a right to trial by jury in all classes of cases, but merely as guaranteeing the continuance of the right unchanged as it existed either at common law or by statute at the time of the adoption of the Constitution. 24 Cye. 101; Crowell v. Akin, *151
We think that this position is sustained by the holding of this court in Jernigan v. Garrett, supra, which dealt with the adoption of a minor child, and in which the court said: "If the father or mother has abandoned the child, and the court is further satisfied that such adoption would be to the interest of the child, the court shall declare the child to be the adopted child of the petitioner and capable of inheriting his estate. . . The statute referred to contemplates that the court, after hearing objections, if any such are filed to the application, shall determine the questions made. Trial by jury is not contemplated by this statute. The only hearing provided for is by the court to whom the application is made, and the constitutionality of the law is not attacked on the ground that it is in violation of the constitutional guaranty of the right to a trial by a jury, and if such attack had been made on the statute, it would have been without merit."
Again in DuBose v. Gormley, supra, when this court was called upon to decide whether or not the allegations in a petition brought under the Banking Act of 1919 were sufficient to state a cause of action, it was said: "If on the trial of that suit the court, after hearing evidence, is of the opinion that the facts and circumstances authorize and require the granting of a certificate, the court renders judgment directing the superintendent to issue the permit. . . It is the court's opinion based on the facts and circumstances as made to appear by the evidence submitted at the trial that determines whether a certificate shall issue." While it is true that the DuBose case was before the court on demurrer, still the case involved a discussion of the trial procedure, and it will be noted that in that case, when this court stated, "The court renders judgment," it italicized the word "court." Construing the two Code sections together ( §§ 13-1701, 13-1702), which we must do to ascertain the legislative intent, we are of the opinion that the issues made in the instant case were for determination by the trial judge under the general rules relating to mandamus procedure; and accordingly, it was not error to overrule the motion for trial by jury, nor for the court, after having overruled such motion, to hear the evidence offered in support of the petition. *153
3. In grounds 7 to 18, inclusive, error is assigned on orders overruling separate motions to exclude the evidence given by a number of witnesses for the plaintiffs, who testified that they were of the opinion that the establishment of the proposed bank would be expedient and desirable; that one bank is not sufficient to supply the banking needs of Blackshear and its trade area; that two banks at Blackshear could profitably operate in normal times; and that ownership by the members of one family of a majority of the stock in Blackshear Bank and its affiliated corporations tends to create a monopoly and to stifle business. As such evidence was given by each separate witness, it was objected to on the ground that it was a mere conclusion of the witness; related to an ultimate issue of fact, which the court was required to pass on from the facts, and not what the witness thought about it; and being only the opinion of the witness, it had no probative value. The assignments of error recite that the witnesses were allowed by the court to give the evidence objected to, "after testifying as shown by the brief of evidence." An examination of the record discloses that each witness who was allowed to testify to any opinion he had with reference to the issues of the case had previously testified at great length to existing banking facilities in the community to be served by the proposed bank, and to business and financial conditions generally in Blackshear and the surrounding territory.
"Where the question under examination and to be decided by the jury shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor; but if the issue shall be as to the existence of a fact, the opinions of witnesses, generally, shall be inadmissible." Code, § 38-1708. "A witness may give his belief or opinion when it is in connection with, and a mental deduction from, the facts which come within his knowledge and to which he has deposed." Bryan v. Walton,
4. Error is assigned in grounds 20, 21, 22, and 23 on the admission of testimony given by Alvin Ratliff, a witness for the plaintiffs, who was permitted to testify to the relationship of the stockholders of Blackshear Bank, The Blackshear Manufacturing Company, Pierce Trading Company, and The Brantley Company, with the four deceased Brantley brothers, over the objection that such evidence was irrelevant, immaterial, did not illustrate any issue involved in the case, and had no probative value. It was alleged by the plaintiffs (defendants in error) that the "Brantley interests," composed of descendants and relatives of four deceased Brantley brothers, owned a majority of the stock in the above-named corporations and other similar businesses located in Blackshear and Pierce County; and that such ownership naturally tended to create a monopoly and to stifle business. The petition was not demurred to. The objections were without merit. The plaintiffs were entitled to prove their case as alleged. "It can not be at this time even a matter of slight doubt that a plaintiff is entitled to prove everything he alleges in a petition upon which he is permitted to go to trial without objection on the part of the defendant, either to its form or its substance." Mayor c. of Macon v. Melton,
5. Over the objection that the evidence was hearsay, immaterial, irrelevant, and of no probative value, Alvin Ratliff, a witness for the plaintiffs, was permitted to testify as follows:
"Q. Mr. Ratliff, in connection with the establishment of a new bank at Blackshear, have you interviewed a large number of people in Blackshear? A. Yes, sir, I have contacted a good many. Q. About how many have you interviewed, Mr. Ratliff, approximately? A. Well, I wouldn't know exactly, but I think I have talked to as much as two hundred people. Q. Out of the number you have talked to, have you found any who did not favor the new bank other than those connected with the Brantley interests? A. I didn't find a man."
Unquestionably the purpose of this testimony was to show that many of the people residing in the community to be served by the *156
proposed new bank were of the opinion that its establishment would be of public convenience and advantage. The fact that it was offered and admitted over the objection made, convinces us that the court considered it of probative value. "Hearsay evidence is that which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons." Code, § 38-301. The evidence objected to, being hearsay, should not have been admitted over the objection urged. In Foster v. Atlanta Rapid Transit Co.,
In the case at bar, there can be no doubt that to allow the witness Ratliff to testify that he had interviewed a large number of the citizens of Blackshear, probably two hundred, and that all favored the establishment of the proposed new bank, except those connected with the Brantley interests, was open to the objection that it was hearsay. The presumption is, we think, that they would not favor the establishment of the proposed new bank unless they were of the opinion that it would be of public convenience and advantage. The evidence, being hearsay, was inadmissible, and its admission over the objection made was reversible error.
6. The 25th assignment of error is not well taken. The evidence to which it refers, and which was allowed over the defendant's *157
objection, was directly responsive to a question propounded by his counsel. It may be added, too, that the question was in line with others immediately preceding it. Tift v. Jones,
7. The 26th and 27th assignments of error have been carefully examined and are without merit.
8. J. C. Beasley, Superintendent of Banks, called by plaintiffs for the purpose of cross examination, in response to questions, testified that certificates for charter of various banks had been recently granted by him, some in localities where banks were then located, and giving the approximate population of the respective locality and its banking facilities. The court overruled a motion to exclude the evidence on the ground that "it was irrelevant to any issue involved in the present case and could not concern the determination of said case. Counsel for defendant submitted that the question for determination in the instant case was what was proper to be done here and not whether the defendant did or did not grant charters in other towns." The exception is without merit since the evidence objected to was relevant on cross-examination. Code, § 38-1705.
9. Assignments 29 and 30 have been fully dealt with in the preceding divisions of this opinion and require no further elaboration.
Judgment reversed. All the Justices concur, except Wyatt, J.,who dissents from the ruling in division 5 of the opinion and thejudgment.