68 Ga. 560 | Ga. | 1882
Lead Opinion
The motion for a new trial in this case is based on three grounds : First, that the claimant was not permitted to conclude the argument; secondly, that the court gave erroneous charges to the jury; and thirdly, that certain evidence was rejected.
These facts make it too plain, it seems to us, for serious question that when the claimant was recalled to be asked omitted questions, by leave of the court and without objection by his own counsel or himself, at the very moment that the plaintiff announced “ we will introduce no evidence,” that he was recalled as his own witness still. The plaintiff had the right to put him up as his, the plaintiff’s, .witness without any leave from the court, or acquiescence from the claimant. If he had intended to offer his adversary as his witness, he would not have asked the leave to recall him, nor would he have said at the very time he asked leave to recall him, “we will introduce no evidence.” What sort of child’s play, what nonsense to say, “we will introduce no evidence,” and straightway to'introduce it! It is clear, therefore, that plaintiff did not intend claimant when recalled to be his witness. The very language, to recall, indicated to have him again on the stand as he was before he left it. The very leave he asked, the announcement he made when he asked it, all show his, the plaintiff’s, intention.
How was it with the claimant? Why did he not object, if he intended to regard the witness as plaintiff’s witness, when he knew that his adversary regarded him as his own? Is it fair that he shall sit silent and acquiesce in the leave to recall, and then claim himself to be the witness of the adversary when recalled? Nay, more, shall he go on and participate in the renewed examination of himself, and thus, bj- acts as well as silence, approve of the leave of the court to the recall, and afterwards claim “I am the witness of the other side and not my own” ? Does not fair dealing estop hinq from setting up such a claim ? Will any court tolerate such ambushing? Justice always stands in an open field, and should not permit fighting under cover by any of the combatants in her tournaments. Batteries may play as rapidly and powerfully as brain and
Yet, in this case, after all this acquiescence, it is gravely argued that the claimant himself masked himself and ambushed so successfully as to make himself his opponent’s witness to cover himself from all attacks upon himself tending to impeach him at all, and to turn his opponent out of his strong position to conclude the argument, a position won át the sacrifice of all his own witnesses, and take that position himself, because the court let his opponent ask him questions omitted when he was up. It is gravely argued that he thus managed to turn himself into his adversary’s witness by this skilful deploying under cover, and that a court that would not allow him to consummate the end of this skilful maneuvre has abused discretion. We cannot think so.
That all this conduct of a cause in the nisi prms court rests in the discretion of the judge, see 14 Ga., 242; 19 Ib., 220; 20 Ib., 156; 45 Ib., 283. The last case is relied on by plaintiff in error; but the court say there: “It would be improper for this court to interfere with the discretion of the court below in the conduct of a cause on such a point.” Whilst therefore in that case the court agreed with the court below which refused the recall of the witness, it did not disturb the well established doctrine that the matter rested in the discretion of the presiding judge. There the objection was made to the recall of the witness, and it was not allowed and the court was affirmed in not allowing it done ; but there was in that case no acquiescence by the other side, no announcement that “we will introduce no evidence,” no ambuscade, but an open objection and a fair fight. Had this been that case, the ruling would have been the other way; and the court would-not only not have interfered with the discretion of Judge Brown, but would have approved its exercise.
In regard to the onus, it is enough to say that when claimant admitted possession in the defendant in ft. fa. in his own right, he admitted enough to condemn the property until he showed title in the claimant. He took the burden, and that burden was to show a clean title out of the defendant as an individual into the claimant as trustee.
To make the conveyance to wife and children such clean title, he had to show solvency, and if considerably in debt, ample means to pay what he owed to remove the presumption of intent to defraud or delay creditors— enough means to satisfy the jury that he did not have such intent, in connection with the other circumstances of the case. If his solvency or insolvency were a close question, as in this case, ' then the task would be more difficult to show a clean deed of gift, and if that
5. The evidence supports, if it does not require, the verdict, and the presiding judge having approved it, we do not interfere.
Judgment affirmed.
Cited for plaintiff in error: 41 Ga., 196; 58 Ib., 451, 510; 59 Ib., 71; 60 Ib., 572; 61 Ib., 629; 45 Ib., 283; 3 M. and W., 505; 14 Ib., 95; Bump on Fraud. Con., 194; 3 Barb., 110; 17 Ga., 217; 64 Ib., 57, 352, 447, 582, 761, 63 Ib., 22, 85; Code, §1952; 25 Ga., 686; Story Eq., 362; 11 Wheat., 199; 1 Day (Conn.) 525; 53 Ga., 155; 59 Ib., 256; 60 Ib., 572; 56 Ib., 369; Bump on Fraud. Con., 295: 6, 540, 562; 12 Ill., 166; 9 Pet., 220; 18 Wend., 375; 3 Gratt., 26; 37 Me., 397; 34 N Y., 386; 8 Wall., 370; 3 B. & A., 262; 7 Ire., 341; 61 Ga., 373; Bump on Fraud. Con., 388, 327; 28 Ga., 174; Bish. on Law of Mar. Women, 757; 15 Ill., 101; Schouler’s Dom. Rel., 282-3, note; 53 Ill., 186; 2 Heisk., 343; 59 Ga., 436; 60 Ib., 119; 61 Ib., 280; Code, §3715; 12 Ill., 166; 24 Ga., 211; Code, 3739, 3753; Burr, on Ass., 340.
For defendant: 14 Ga., 242; 19 Ib., 220; 20 Ib., 156; 25 Ib., 684. 17 Ib., 220; 1 Story Eq., 362, 363; Bump on Fraud. Con. chap, 11, pp. 286, 294-5, 284-5; 59 Ga., 485; 6 Ib., 265.
Dissenting Opinion
dissenting.
The real controlling question in this case was fraud or no fraud; the verdict necessarily turned upon it; the
We all concur inj:he legal principle involved, but disagree as to the legal effect of what transpired on the trial. The claimant assumed the burden on the opening of the case, offered his testimony and closed ; the counsel for plaintiff in fi. fa., upon consultation, announced to the court that they would offer no testimony, but desired to call back to the stand a witness who had testified for a moment, and ask him some questions which had been omit' ted ; no objection was made ; he was recalled, examined as to entirely new matter, and the examination pressed, until the evidence swelled into proportions very nearly equal to that which had been given in by the claimant, and .undoubtedly controlled the verdict. The court gave the conclusion to the plaintiff in fi. fa.
I think this was error. He was entitled to the conclusion upon one condition only, and that was that he introduced no evidence.
The law does not say, nor does it mean, that it depends upor whose witnesses are called to testify; it depends upon whether any evidence is offered ; and if it is, whether from newly called or previously sworn witnesses is wholly immaterial. What the witness said was either evidence or nothing; it was held to be evidence, introduced as such, and was offered by the plaintiff after the claimant had closed, and this lost him the right, in my opinion, to the conclusion.
Neither do I think that it was necessary for the claimant to have objected; he had the right to stand on the law, and if any testimony was introduced by the plaintiff in fi. fa. he lost the conclusion thereby, and that whether it came from one witness or another. 45 Ga., 283; Rules Superior Court, 13.