45 S.E.2d 87 | Ga. Ct. App. | 1947
1. The evidence authorized the verdict for the defendant.
2. The court did not err in refusing to admit in evidence parts of the record in another case in which the defendant was not a party but was a witness. The fact that the defendant testified in another case and knew the contentions of the parties therein did not estop her from claiming as a credit on the execution against her a payment which had been likewise claimed by one of the parties in the other case.
3. The court did not err in giving the charge as complained of in ground five of the amended motion.
1. As to the general grounds of the motion for new trial it may be said that the evidence was in conflict, but there was ample evidence supporting the finding of the jury in favor of the defendant and in support of her affidavit of illegality.
2. Grounds four and six of the amended motion relate to the same matter and will be treated together. They complain of the refusal of the court to allow the introduction in evidence of portions of the record in another case. The other case was an affidavit of illegality filed by J. A. Ogburn, under the levy of an execution held by B. S. Calhoun, transferee, based on a judgment against certain parties, but not including the defendant in this case. The contention is that the payment of $647.32 claimed by Maggie Williamson in the instant case was also claimed by J. A. Ogburn in the other litigation, and that Maggie Williamson was present in court when the other case was tried, and appeared as a witness therein, and knew that Ogburn was claiming the $647.32 as a credit on the execution levied in that case; and that by reason of her presence in court and her knowledge of the claim made by Ogburn she is now estopped to assert that the payment in question was applied in settlement of the execution against her.
We do not think that the court committed error in excluding from the evidence a part of the record in the other case. Maggie Williamson was not a party to the other case. She was not called upon to make any admissions or claims concerning the payment of the $647.32 when it was involved in the trial of that case. It does not appear that she gave any testimony with respect to that payment which could be considered as an admission *93 contrary to her contentions now. The mere fact that she knew Ogburn was claiming credit for the payment she now says in this case was made on the execution against her does not amount to an estoppel as contended by the plaintiff.
Estoppels are not generally favored. Code, § 38-114. One who was physically present at the trial, but took no part therein, was not bound by a judgment in a case to which he was not a party. Tarver v. Jones,
3. The court did not err in giving the charge as complained of in ground five.
Judgment affirmed. Sutton, C. J., concurs, and Felton, J.,concurs in the judgment. *94