22 S.E.2d 124 | Ga. | 1942
One who assigns error must show error by the record. Where on the trial of an intervention the judge charged the jury that the issue then being tried was not a part of the main case which had been previously referred to an auditor, and therefore that any ruling made by the auditor would not be controlling on such issue, a motion for new trial, complaining because of the failure to charge on the issue as to whether the intervenor was a party to the main case, does not show error, where none of the pleadings or orders of the main case are contained in the motion and record transmitted to this court. In the absence of a showing to the contrary, this court will assume that the judge, who on the trial of an intervention may take judicial notice of the minutes and proceedings in the main case, was authorized by such minutes to state that the issue made by the intervention was one which had not been submitted to the auditor.
On the trial of the case made by the intervention the evidence on the question whether the assignment under which the defendant claimed the interest of the intervenor was a forgery was in conflict. The defendant introduced the following acknowledgment of service in the main case, purporting to have been signed by the intervenor and others: "Due and legal service of copy of answer and cross-bill of J. C. Branch as executor of the will of J. J. Branch, deceased, together with copy of order of Honorable Blanton Fortson, Judge S.C. W. C., directing service upon the parties therein named, and making each parties to said case, acknowledged. All other and further process, service, and copies waived, and we and each of us hereby agree that said case may be tried at the July term of the superior court of Oconee County, Georgia, the same being the return term of court to which the original case is made returnable." The evidence was also in conflict as to whether the intervenor's signature on this paper was genuine.
The court in its charge submitted to the jury the question relating to the authenticity of the assignment under which the defendant claimed title to the intervenor's share of the estate involved, but did not allow the jury to pass upon any question with reference to whether the intervenor had been served in the main case or had had his day in court. As to the latter matter the court made the following statement in the charge to the jury: "On the issue of that day in court, I charge you that the issue you are now trying, whether or not this paper purporting to have been signed by S.C. Branch to A. L. Branch, and assigned by A. L. Branch to R. E. Branch, is a genuine paper, was not before Judge Burger [the auditor], and was not a part of the main case referred to Judge Burger, and therefore any rulings made by Judge Burger are not to be controlling on the issues in this case." The jury returned a verdict for the intervenor. The defendant moved for a new trial on the general grounds, and on a special ground assigning error on the instruction quoted above, it being contended that the question *577
whether the intervenor had had his day in court was, under the pleadings and evidence indicated above, a controlling issue in the case, which should have been submitted to the jury even in the absence of a request. The court overruled the motion for new trial, and the defendant excepted.
The general grounds of the motion for a new trial are not insisted on in this court, and the only question for determination is whether the special ground shows error. From the bill of exceptions it appears that the superior court, under its equitable powers, had taken jurisdiction of the estate involved, for the purpose of administering it. It also appears that an auditor was appointed in the case. However, the present record contains none of the pleadings in the main case. Nor is there anything in the motion for new trial or elsewhere in the record to show the questions involved under the pleadings in the case referred to the auditor, or whether all or only a portion of the case was referred to the auditor. The judge was not required to submit the entire case to the auditor, and it would have been proper for him to "refer any part of the facts to an auditor to investigate." Code, § 10-101; MassachusettsBonding Insurance Co. v. Realty Trust Co.,
Judgment affirmed. All the Justices concur.