60 Ga. 582 | Ga. | 1878
Wm. Gabbett, as trustee for Mrs. Gabbett, sued one Fowler, a tenant of Mrs. Mary Sparks, in the statutory form of pleading, for the possession of a tract of land or lot of land in the city of Atlanta and county of Fulton. Mrs. Sparks was brought in as a party, to which proceeding she took no exception, but filed a plea to the effect that she was sister and heir-at-law of one John Ennis, deceased, who bought two lots, both embraced in the parcel sued for, of Wm. Gabbett, trustee, one of which may be designated for the purpose of this decision as number two (2) and the other as number four (4), without more to describe them; that number two was bought for $500.00, all of which was paid, and number four for $400.00, $140.00 of which was paid; that Ennis took bond for titles to each, and she prayed that the lot paid for should not be taken from her, and that equity should be done in the premises. The jury found number two for the defendant, Mrs. Sparks, and number four for
Various grounds are set out in the motion for a new trial, but we think they may be all considered and determined under four heads.
In respect to any dealings between Mrs. Gabbett and Mrs. Sparks after Ennis’ death as to the payment of the notes, or otherwise, we hold that Mrs. Gabbett was competent ; but the judge certifies that she was not offered after Mrs. Sparks had testified, nor for that purpose. The general rule is, that she was incompetent ; if she was offered for a reason and purpose that took the case out of the general rule, it was incumbent on the party offering to call the attention of the court thereto, and to state distinctly that she was offered, not to testify about any transaction with the deceased, but to prove facts which did not bring her in collision with him — his mouth being closed in death. This, we take it, is the substance as well as the reason and spirit of the law on this subject, and the ruling of this court thereon ; the judge certifies that no motion was made to introduce her after Mrs. Sparks was sworn, or to take the case otherwise out of the general rule,
At the time when she was offered.,- and for the purpose for which she was offered, we agree with the presiding judge that she was incompetent.
Ordinarily, either party, when sworn, goes to the jury not as pure as a disinterested witness; but the credibility of such party-witness is a question for the jury. 55 Ga., 450. But where one party puts up the other as a witness, we think that the general credibility of such witness is indorsed,
At all events, the court gave the party full liberty to attack the witness by other testimony, and we cannot see how the plaintiff was hurt by the charge, or portion of it, which might have been erroneous as not authorized by evidence.
It is true that the able counsel for plaintiff in error argued to us that the words “other testimony” meant testimony other than that sworn to by the witness herself; but we think that the court meant by it, and its obvious meaning is, that the plaintiff might show in any way, except general reputation, that the witness had made a false statement— that is, by her own other testimony, or statement inconsistent with the statement attached.
In this view, we cannot see substantial error or harm in the charge.
Mrs. Sparks swore positively and repeatedly that all the money for lot number 2 was paid. It is true that she says, also, that the notes were taken up, all of them, for that lot, and yet the plaintiff shows that some of them are yet in his hands, and produces them in court; so that it is clear that all were not actually taken up by her, and that she is mis
We do not see error in this instruction. A note maybe paid off and not taken up. By accident or oversight, another for the same sum and due at the same time, might well be taken in lieu of the right note. A woman unaccustomed to such dealings, might well make such a mistake or oversight, and take up the wrong notes. The great question is, was the lot number 2 paid for ? were the notes really paid which were given for that lot? This witness swore it, the jury believed her, the presiding judge believed'her, and we are not called upon to judge of her credibility, and to overrule those who are better judges of credibility than this court can possibly be.
One thing is certain — one fact is undisputed: the ancestor of this defendant bought two lots, one for five hundred and the other for four hundred dollars; six hundred and forty dollars have been paid by him and by the defendant, with his money, after he left for the army, for these two lots, which sum is enough to pay fully for one lot, and leave $140.00 to go on the other. By the verdict of the jury, the plaintiff got one lot and $140.00; the defendant got the other lot and recovered costs against the plaintiff. It seems that justice has been readied. Certainly no great wrong has been done; and inasmuch as there is evidence to support the verdict, and the judge who tried the cause approves it, we do not feel at liberty to open the case for further litigation.
Judgment affirmed.