194 Ga. 1 | Ga. | 1942
The plaintiff, in her action against W. A. Davis, sought in the same petition to recover a money judgment against Davis for his alleged breach of promise to marry her, and to set aside and cancel a deed to certain real estate from W. A. Davis to himself as trustee for his minor son; it being alleged that Davis, pending his promise to marry the plaintiff, accepted certain moneys advanced by her to him, with the understanding and agreement that said moneys would be used to purchase certain described real estate to be used as a home by them after they were married, and the title would be taken in their joint names; and that, in breach of this promise as to the use of said funds, Davis, after receiving the advances made to the plaintiff, purchased the property in his own name and thereafter, so as to render himself insolvent, conveyed the property to himself as trustee for his minor child. The action to recover damages for breach of promise to marry is an action ex contractu (Graves v. Rivers, 123 Ga. 224, 51 S. E. 318), and is not inconsistent with or unrelated to the cause of action to declare certain real estate to be impressed with trust funds, where the funds were advanced by the
On the trial of the case counsel for the plaintiff called the opposite party, W. A. Davis, as a witness for the purpose of cross-examination. At the conclusion of the examination the court refused to permit counsel for the defendant to examine the witness. It is apparent from the record that the opposite party was cross-examined as a witness, under the privilege given by the Code, § 38-1801. Under the circumstances, we are óí the opinion that the court did not abuse its discretion in refusing to allow the defendant to be examined as a witness by his own counsel until he should subsequently be offered in his own behalf. See, in this connection, Rainey v. Moon, 187 Ga. 712 (2 S. E. 2d, 405); Scarborough v. Walton, 36 Ga. App. 428 (136 S. E. 830); Akridge v. Atlanta Journal Co., 56 Ga. App. 812 (194 S. E. 590).
In the motion for new trial there are several assignments of error upon excerpts from the charge of the court. While all of these assignments have been carefully examined, only those contained in grounds 13 and 15 will be specifically dealt with in this division of the opinion. Ground 13 complains that the court did not correctly give in charge Code § 38-106, which defines prepon
“The superior court may, in a proper case, mould the verdict so as to do full justice to the parties, and in the same manner as a decree in equity.” Code, § 110-106. “A verdict may be amended in mere matter of form after the jury have dispersed; but after it has been received and recorded, and the jury dispersed, it may not be amended in matter of substance, either by what the jurors say they intended to find or otherwise.” § 110-111. Though the jury may express their meaning in an informal manner and the court has the right to put it in such form and shape as to do
The record in this case discloses that the jury first orally reported an agreement to “eliminate” the breach of promise suit and give the plaintiff a verdict for $825, “the money she advanced Dr. Davis in her trust fund, with legal interest.” Because the jury failed to find as to how much of the amount received by the defendant in trust had been used in the purchase of the property, the court instructed the jury to deliberate further on this question, and the jury retired for further consideration of the case. Upon their return, the jury announced an oral verdict awarding the plaintiff $500 damages for breach of promise to marry, and $400 as the amount that they found had been used by the defendant Davis as trust fund in the purchase of the property. After some conversation between the court and the foreman of the jury in the presence of the other members of the jury, the court said: “Let us get this verdict straight. In the first place you find $500 for the breach of marriage contract?” The foreman: “Yes, sir.” The court: “You find $400 of her trust fund went into the Monroe Street property?” The foreman: “Yes, sir.” Thereupon the court dictated the verdict pursuant to the oral findings of the jury, and stated to the jury: “If that does not express your findings let me know now. Is that exactly what you want to find ?” The foreman: “That is all right.” The court: “That is the verdict you want to sign?” The foreman: “Yes, sir.” And the verdict as written out was signed by the foreman. The verdict as reformed by the court changed entirely the findings of the jury as to the prayer for damages for breach of promise to marry, and substituted the sum of $825, instead of $400, as found by the jury that represented the amount plaintiff entrusted to the defendant for the purchase of a home for herself and the defendant, W. A. Davis. The jury in its verdict did not award the plaintiff interest from the date of advancement of the various sums, but the verdict as reformed by the court awarded to the plaintiff interest at the rate of seven per cent, per annum from the dates of the several
It is our opinion that the court, under the facts as shown in the record, was without power to reform the verdict in the manner described above, because to do so amounted to amending the verdict in substance. The court had authority to amend the verdict in matter of form, or to put it in such shape as to speak the true intent of the jury in accordance with the pleadings and the evidence ; but it did not have authority to write a new verdict different from the one returned by the jury. The record shows that the finding by the jury of a money verdict of $500, in favor of the plaintiff on her prayer for damages for breach of promise to marry, was agreed to and assented to by the jury in open court, and that the verdict as signed by the foreman was dictated by the court; and after its dictation and after it was written out and read to the jury, the court asked the foreman in the presence of the other jurors if that was the verdict “you want to sign.” The foreman responded in the affirmative, without any dissent from the jurors. We have examined the evidence, and it is sufficient to support such findings; and no reversible error otherwise appearing, it is our opinion that the judgment and decree should have been entered upon this verdict, and that the court was without authority in reforming the verdict and entering the judgment upon the verdict as reformed. We therefore direct that on the return of this case to the court below the trial court enter a final judgment and decree on the verdict of the jury dated November 16, 1940. Robinson v. Alexander, 65 Ga. 406; Code, § 6-1610.
Judgment affirmed, with direction.
After the decision in this case was entered, the plaintiffs in error brought their motion to tax the costs of the writ of error against the defendant in error. It is urged that the affirmance of the judgment with direction was a substantial modification of the judgment upon which error was assigned. This court has ruled in many