Denson v. Denson

111 Ga. 809 | Ga. | 1900

Lead Opinion

Simmons, C. J.

1. Where one of the parties to a case on trial offered in evidence a portion of the testimony of a deceased witness, contained in a brief of the evidence had upon a former trial of the same case, a ruling to the effect that such portion of the testimony of the dead witness could not be introduced without, at the same time, introducing from such brief the substance of his entire evidence as to the particular matter about which he testified, was not erroneous.

Argued November 8, 1899. — Decided April 6, 1900.

Equitable petition. Before Judge Smith. Twiggs superior court. November term, 1898.

Hardeman & Moore and Dessau, Harris & Birch, for plaintiff. Hall & Wimberly and Winter Wimberly, for defendant.

2. A brief of evidence setting forth a portion of the testimony of A., a witness, and reciting that, in addition thereto, he “testified to the same facts substantially as” B., another witness, whose testimony appears in the brief, makes it proper to treat the testimony of B., as written out in the brief, as a part of the testimony of A. on the trial to which such testimony relates.

3. In view of the conflicting evidence in this case, it was one for solution by a jury, and not for determination by a judgment of nonsuit.

Judgment reversed.

All the Justices concurring, except

---

Dissenting Opinion

Lumpkin, P. J., and Fish, J.,

dissenting. We concur in the propositions laid down in the first and second lieadnotes; but are of the opinion that it was not erroneous to grant a nonsuit, for the reason that the evidence introduced in behalf of the plaintiff failed to show that she was entitled to the relief for which her action was brought.