4 Ga. App. 238 | Ga. Ct. App. | 1908
A fi. fa. against J. T. Brown and in favor of Carter & Ford was levied on certain personal property, which was claimed by Mrs. Belinda Brown. The jury rendered a verdict in favor of the claimant, finding the property not subject to the plaintiffs’ judgment. Thereupon the plaintiffs moved for a new trial, which was refused, and they now except to the judgment refusing a new trial.
Besides the general grounds, error is assigned, in the motion for new trial, on various excerpts from the charge of the court. Regardless of the fact that it was not asked or ordered that the charge of the court in full be transmitted to this court (by reason 'of which this court is unable to judge whether the language excepted to was qualified by other language used in the charge), the ’ errors assigned upon these excerpts are immaterial, for the reason that under the undisputed evidence in the case the jury could not properly have returned another verdict than that rendered. There was no evidence that the buggy and the two-horse wagon which were levied upon had ever been the property of the defendant in fi. fa. The heat of the battle, as far as it went, arose over the question whether the iron-gray mule, “Pet,” belonged to the claimant, Mrs. Belinda Brown, or to her husband, the defendant in fi. fa. This mule was the only article levied upon as to which there was
The plaintiffs in fi. fa. complained of the court’s charge that ■“the issue in the case, gentlemen, is, was this property; at the date of the rendition of the judgment upon which this fi. fa. is based, to wit, in February, 1905, the property of J. T. Brown, or was it the property of Belinda Brown? That is the issue that you are to try.” The error assigned is, that it limited the title to the property to the month of February, 1905; and it is contended that the court should have charged the jury that if they believed that the defendant owned the property levied upon, at any time between the date of the judgment and the levy, the property would be subject. After a review of the evidence, we find n'o error in this instruction; because there is no evidence that the defendant owned
There is no reason why the plaintiffs in error should complain of the instruction which is made the basis of the next assignment of error, though the defendant in error would have had good cause for complaint had the judgment been against her, instead of in her favor. According to this exception, the court charged that if the defendant in fi. fa. was in possession of the property on February 13, 1905, when the judgment was rendered, and Mrs. Belinda Brown was not in possession of it, the jury would be authorized to find for the plaintiffs. The court followed this instruction with this statement: “You look to the evidence and see if the title was in J. T. Brown at the date of the rendition of the judgment, on February 13, 1905; and if the title was in J. T. Brown then, you would be authorized to find the property subject,— you look to the evidence and see what the facts disclose.” The last instruction was correct, and, as we have said before, was in accord with the evidence; because it was undisputed that if Brown ever bought the property at all, either for himself or his wife, it was prior to the date of the judgment; and as there was no evidence whatsoever that he ever sold the property, it necessarily follows, that if he bought the property originally for himself, he owned it at the time of the rendition of the judgment, and had continued to own it up to the trial. For that reason it was- necessary for the judge (if, indeed, he did omit the statement) to state to the jury that if they found that the title was in J. T. Brown at any time srtbsequent to the rendition of the judgment and up to the time of the levy, the property would be subject. One of the complaints
If the court should not have charged upon the necessity.of a close scrutiny of all transactions between husband and wife in order to prevent fraud, it is nevertheless very apparent, from the excerpt to which exception is taken, that the charge of the court upon that subject, while perhaps subject to the objection that it was not authorized by the evidence, was highly favorable to the plaintiffs in error. For that reason they will not be heard to urge the only objection that might be offered to this charge, to wit, that there was no evidence of any purchase or sale between the husband and the wife. We are not prepared to hold, however, .that the charge is erroneous upon this ground. It certainly would have been proper if there had been no evidence that the defendant was in possession of the property after the date of the judgment; because the claimant had testified that her husband was her agent, and that the property had been bought for her by him as such agent; and the jury might properly have been put upon notice that they should consider the relationship of the parties in determining whether Mrs. Brown really had constituted her husband her general agent, or whether the alleged agency was a mere subterfuge intended to defeat the rights of her husband’s creditors.
The court did not err in refusing the request presented by counsellor plaintiffs in error; because the court is not required to give an instruction which is requested, unless it be perfect, nor to perfect it in order to present the principle relied upon. The fact that the defendant in fi. fa. gave his note for an unpaid balance of the purchase-money of the mule would not put the title to the
The plaintiffs in fi. fa. seem to have been placed in this dilemma: they could not make out a prima facie case by their witnesses, and were reduced to the necessity of introducing the claimant herself, whose evidence was not such as to authorize a verdict in their favor. Upon the facts, a verdict in favor of the claimant was demanded by the law and evidence; and it is well settled that a reversal of the judgment refusing a new trial, under such circumstances, will not be granted for errors in a charge. Danielly v. Colbert, 71 Ga. 218; Pascal v. State, 77 Ga. 596 (3 S. E. 2); Prather v. Railroad Co., 80 Ga. 428 (2), (9 S. E. 530, 12 Am. St. R. 263). Judgment affirmed.