174 Ga. 423 | Ga. | 1932
An execution issued from Tift superior court on April 3, 1922, in favor of D. L. Rogers against Cassie and Warren Gibbs. On March 11, 1925, the execution was levied upon described property in the City of Tifton, as the property of the defendants in fi fa., being the property in controversy. R. A. Hendricks filed a claim on March 27, 1925. The trial of this claim case came on at the July term, 1925, of Tift superior court. There ivas pending in the same court at the same time the case of Security Mutual Paint and Varnish' Company v. Cassie and Warren Gibbs, an execution having been levied on the property in controversy in favor of the Paint Company, and a claim having been filed in that case by R. A. Hendricks. The same issue was involved in each case, viz., whether or not the property levied upon,
Ground 1 of the amendment to the motion for new trial is as follows: “Movant contends that the following material evidence was illegally admitted to the jury by the court over the objection of movant, to wit: Original fi fa., dated April 3, 1922, in the case of D. L. Eogers against Mrs. Cassie Gibbs and Warren Gibbs, based on a judgment dated April 3, 1922, and recorded on the general, execution docket of Tift superior court on April 3, 1922, the same being levied on one city lot, being lot number one of.Tifton, Tift County, State of Georgia, in block number two hundred and one, fronting east on Mill Avenue, and South on Sixth Street, on which is built one six-room, single-story, frame building, said property being levied on as the property of Mrs. Cassie Gibbs, and in her possession on the date of the levy; and the tenant in possession notified in writing as required by law. This 11th day of March,
Ground two of the amendment to the motion for new trial is as follows: “Movant contends that the following material evidence was illegally admitted to the jury by the court over the objection of movant, to wit: The original claim affidavit and bond, filed by E. A. Hendricks on March 27, 1925, said claim being a claim to the property in question, together with the entry thereon of the verdict found upon the trial of said case, which verdict was as follows: 'We, the jury, find the property subject. S. A. Martin, Foreman/ For a clear understanding of the error complained of,
Ground 3 of the amendment to the motion for new trial is as follows: “Movant contends that the following material evidence was illegally admitted by the court over the objection of movant, to wit: The judgment of the court dated July 7, 1925, reading as follows: ‘The jury in this case having returned the following verdict: “We, the jury, find the property .subject. S. A. Martin, Foreman, July 7, 1925,” it is therefore considered and adjudged that the property is subject to the levy, and it is ordered that the levy proceed. The costs of this proceeding are taxed against the defendant. This July 7, 1925. R. Eve, Judge superior court, Tift Judicial Circuit.’ Movant objected to the admission of‘such evidence at the time same was offered, and did then and there urge the following grounds of objection, to wit: ‘We object to the judgment on the ground that it is irrelevant and immaterial, and on the further ground that it will be necessary to introduce the entry of the docket showing the agreement upon which said judgment was taken, before allowing the introduction of the judgment so taken.’ The objection so made was then and there overruled, and movant now contends that the action of the court in overruling said objection and allowing said evidence to be admitted was error.” For the reasons given in the preceding division of this opinion the evidence complained of was properly admitted.
Ground 4 of the amendment to the motion for new trial is as follows: “Movant contends that the following material evidence offered by movant was illegally withheld from the jury against the demand of movant, to wit: ‘Q. Under what circumstances was this deed [referring to the deed made by Cassie Gibbs to R. A. Hendricks, the claimant in this, case, to the property in question on the 5th day of November, 1921] executed, Mr. Hendricks? A. Well, Mrs. Gibbs came to me to sell this property, and I thought at that time that it was a good piece of property, and I offered her twenty-five hundred dollars for it, and she agreed to accept it; but this property, or so she claimed, was either gotten from her father’s estate, or from the proceeds of her father’s estate, and she wanted an option of rebuying it,’ counsel for the plaintiff having made the objection that it was irrelevant and immaterial. Movant contends that the same was material and should
Ground 5 of the amendment to the motion for new trial is as follows: “Movant contends that the following material evidence was illegally admitted to the jury by the court over the objection of movant, to wit: four certain claims of liens by the persons hereinafter named, for material furnished by Mrs. Cassie Gibbs for the improvement of the house located on the premises in dispute, the said claims of lien being filed in the office of the clerk of Tift superior court, as follows: 1. Claim of lien by Bennett Hardware Inc., against Mrs. Cassie Gibbs, dated- April 28, 1922, for material furnished on the house and property levied on, recorded in Book 8, page 371, of the records of Tift superior court. 2. Claim of lien of C*. B. Burke against Mrs.' Cassie Gibbs, dated March 23, 1922, and recorded in Book 8, page 339, of the records of Tift superior court. 3. Claim of lien by Golden Hardware Company against Mrs. Cassie Gibbs, dated February 24, 1922, and recorded. 4. Claim of lien of J. F. Mims against Mrs. Cassie Gibbs, dated February 24, 1922, and recorded. Movant objected to the admission of each' and every one of said claims for liens, at the time same was offered,, and did then and there urge the following objection thereto: ‘We object to said evidence on the ground that it is irrelevant and immaterial; because there was a judgment of this court finding the property not subject to each of said liens; that there has been no evidence introduced that the material claimed to have been furnished by the respective parties was under a contract with Mrs. Gibbs, or by her authority; that there was no proof offered that the material was actually furnished; that the same are mere claims for liens, and have the effect only of hearsay.’ Movant contends that each and every one of said ob
Ground 6 of the amendment to the motion for new trial is as follows: “Movant contends that during the progress of the trial that movant moved the court to rule out the following material evidence introduced by the adverse parties.: E. D. Smith, Henry D. Webb, and D. L. Eogers gave parol testimony as to the purported agreement between E. A. Hendricks and D. L. Eogers, undertaking to fix the terms of the agreement under which the verdict in the ease of Security Mutual Paint & Yarnish Company, plaintiff, against Mrs. Cassie Gibbs, defendant, and E. A. Hendricks, claimant, was to affect the verdict to be taken in the case of D. L. Eogers, plaintiff, against Mrs. Cassie Gibbs, defendant, E. A. Hendricks, claimant. Evidence was introduced in said case showing that a motion for new trial was filed in the case of Security Mutual Paint & Yarnish Company against Mrs. Cassie Gibbs, defendant, E. A. Hendricks, claimant; that the motion for new trial was granted, and that a final verdict and judgment was rendered in said case, finding said property not subject. The following entry by the judge during the progress of the trial of said case was introduced as evidence: ‘By agreement this case is to be determined by finding in case number 1208, being that of Security Mutual Paint & Yarnish Company against Mrs. Cassie Gibbs and Warren Gibbs, defendants, and E. A. Hendricks, claimant/ Movant made a motion to rule out the parol testimony of E. D. Smith, Henry D. Webb, and D. L. Eogers, aforesaid, upon the following grounds, to wit: ‘We move to rule out all of the parol testimony of the witnesses E. D. Smith, Henry D. Webb, and D. L. Eogers, relative to the terms upon .which the original verdict and judgment in the present case, on the ground that there is an entry of the court fixing the terms of the agreement, and on the
Ground 7 of the amendment to the motion for new trial is as follows: “Movant now contends that the court erred in charging the jury as follows, to wit: fOrdinarily it rests upon the plaintiff in fi. fa. to make out the case and show by a preponderance of the testimony his right to recover in the action; but this being a claim case, and no traverse to the return of the officer showing the property to have been in possession of the defendants at the time of the levy having been filed, the burden is on the claimant to satisfy the jury by a preponderance of the evidence that it is his property and not the property of the defendants in fi. fa.’ Movant contends that such charge was error, in that it did not state the correct principle of law, the correct principle of law being that since the entry of levy recited that Mrs. Cassie Gibbs was in possession of the property that the burden of proof would be upon the claimant primarily, and in the first instance, to make out what the law calls a prima facie case, and to show by a preponderance of evidence and to the satisfaction of the jury that the title to the property in question was in him, and that he had the right to recover. However, upon the introduction of a deed and upon proof of its execution, the burden was carried by the claimant, and that upon the introduction of said deed, the burden then shifted to the plaintiff to show by preponderance of the evidence that said deed was not a good and valid deed. Such charge was error in that no in
Grounds 8 and 9 of the amendment to the motion for new trial complain of the following charges of- the court: “Now, as you enter into a consideration of the merits of the case, bear in mind the instructions previously given you that the burden rests upon the claimant to make out his case by a preponderance of the testimony.” “Now, as to the matter of the deed or conveyance, it is not necessary to enter a deed upon the records in order to make it valid. If the property is bought in good faith and paid for, it is not necessary that the deed be entered upon the records. Of course, in determining the good faith of any transaction, the jury may consider the failure to record a paper, as part of the evidence to determine the matter of good faith in a bona fide transaction as is alleged in this case.” These excerpts from the charge are not erroneous for any reason assigned.
The evidence authorized the verdict. The agreement set out in the statement of facts and entered upon the judge’s docket, prdperly construed, is that if there was a finding in the Paint Company case subjecting the property levied upon in that case, the same verdict and judgment should be entered in the Rogers case. This was done. It may be that if the plaintiff moved for a new trial and that was granted upon its merits, that would entitle the claimant to have the judgment subjecting the land to the execution of Rogers set aside; but he would have to set aside the judgment first; otherwise it would still be an outstanding judgment subjecting the property. If it be true that in the Paint Company case the claimant paid $150 to settle the judgment subjecting the property levied upon, and did not have the judgment set aside upon some error of law committed by the court in the trial of the case, that alone would not entitle the claimant to have the judgment in favor of Rogers set aside.
After reviewing the entire record and the rulings of the court complained of, we are satisfied that the court below did not commit any error requiring the grant of a new trial.