51 Ga. App. 954 | Ga. Ct. App. | 1935
C. S. Arnold as the administrator de bonis non of the estate of B. C. Arnold, brought suit against O. J. Arnold and A. H. Jarecky on a promissory note for $10,000 on which there was a balance due of $1500, besides interest and attorney’s fees. C. J. Arnold filed an answer admitting the execution of the note. For further answer ho said that he was an heir at law of B. C. Arnold; that the only debt due by the decedent at the time 'of his death had been paid; that he left surviving him a widow, Mrs. Sarah F. Arnold, and six children, one of whom had since died, thus leaving five heirs at law; that a year’s support of $1000 had been set apart to the widow, and she was entitled to one fifth part of the balance of the estate; that, so far as the defendant knew, the estate consisted only-of this note on which $9744.84 had been paid, out of which sum various payments had been made to the widow and children of B. C. Arnold; “that this defendant’s interest in said estate is the sum of $1333; and that there are no
The most material portions of the evidence were as follows:
The first assignment of error is that the court erred in over
Error is assigned on the action of the court in entering an order nunc pro tunc, striking the answer of Jarecky because he introduced no evidence to'support the allegation that he had a written assignment of C. J. Arnold’s interest in the estate of B. C. Arnold, and directing a verdict in favor of the plaintiff against Jarecky for the amount sued for. The court did not instruct the jury to find against Jarecky the full amount sued for, but did instruct them as follows: “ In so far as the defendant A. H. Jarecky is concerned, I am going to direct a verdict in favor of the plaintiff against him for such amount as you might find to be due on this note by C. J. Arnold. So you will not be concerned about Mr. Jarecky. You will be concerned solely in this case with whether or not Mr. C. J. Arnold, one of the defendants, is indebted to the estate of B. C. Arnold on this note.” It thus appears from the record that the judge stated during the trial that he would strike the answer of Jarecky, but did not do so, and finally charged the jury to find against Jarecky such amount as they might find to be
The first special ground of-the motion for a new trial alleged that the court erred in overruling the defendants’ motion to rule out the testimony of various witnesses regarding the asportation and disposition by G. J. Arnold of $5688 in cash and $4000 in bonds which were found in the trunk of B. C. Arnold at the time of his death. ' This motion was made after the evidence was closed, and was predicated on the contention that this evidence injected into the case an issue not made by the pleadings. This contention is not sustainable. C. J. Arnold in his answer alleged, as a set-off to the note, that his interest in the estate of B. C. Arnold was the sum of $1333, that there had been a partial distribution to the other heirs, and that there were no debts to be paid. The effect of these allegations was that the estate owed him $1333. This was the only issue in the case. He raised it, and the burden was on him to prove his allegation. The evidence which he moved to exclude was relevant. If he had caused the estate to sustain a loss equal to or exceeding the balance due by him on the note, the estate would owe him nothing. The claim that there should have been some specific pleading on which to base the testimony and the charge of the court in relation to the money and bonds taken by C. J. Arnold from the trunk of his father, B. C. Arnold, is not sustainable. Under our system of pleading, as a general rule, no replication is allowed, but the case goes to the jury on the petition and the answer. Code of 1933, § 81-311 (Code of 1910, §§ 5647, 5651). In some cases the court may require the plaintiff to meet, by appropriate written pleadings, any new matter set up by the defendant in controverting the plaintiff’s petition. Code of 1933, § 81-309 (Code of 1910, § 5633). In the present case there was no motion to require additional pleading by the plaintiff. See Willis v. Sutton, 116 Ga. 283 (3) (42 S. E. 526); Beard v. White, 120 Ga. 1018 (48 S. E. 400).
After the judge had announced that he would strike the answer of Jarecky and direct a verdict against him, the defendants’
Ground 4 of the motion complains of a part of the court’s charge which related to the use by C. J. Arnold of property or money belonging to the estate of B. C. Arnold for making investments in cotton with consequent loss to the estate. The complaint is that that issue was not made by proper pleadings. This contention is sufficiently answered by what has been said in paragraph 3 above.
Ground 5 of the motion complains of the following charge: “It is contended by the plaintiff in this case that Mr. C. J. Arnold used sums of money belonging to the estate of Mr. B. C. Arnold to make certain investments in cotton, and losses occurred therefrom which more than consumed the interest of Mr. C. J. Arnold in the estate of his father. Now gentlemen, that is one of the issues you are to determine in the ease. If you should believe, under the evidence in this case, that Mr. C. J. Arnold did use sums of money belonging to the estate of B. C. Arnold, deceased, which were in excess of any interest that he might have as an heir in this estate, why in that event I charge you that he would not be entitled to any set off, but in that event it would be your duty to return a verdict for the plaintiff for the amount due on the nóte.” The'complaint is that the charge was error, because it expressed an opinion on the facts by assuming that the money used by W. B. Arnold in purchasing cotton belonged to the estate of B. C. Arnold and was not the property of Mrs. Sarah Arnold, and because the
Ground 6 complains that the court in charging the jury did not give them “proper and legal instructions” how to determine whether the cash and bonds were the property of the estate of B. C. Arnold, or the property of Mrs. Sarah Arnold. This complaint does not point out any instruction which would have been “proper and legal.” In a case of this kind there are no rules by which the title to personalty can be determined. The evidence was largely if not wholly circumstantial, and in the absence of some proper request the court could only leave it to the jury to decide whether the money and bonds found in' the decedent’s trunk belonged to him or to his wife.
Ground 7 complains that the court erred in announcing, in the presence of the jury, that he would strike the plea of Jarecky, because no written assignment by C.' J. Arnold had been made to Jarecky. It is alleged that this announcement was error prejudicial to the defendants, because it tended to cause the jury to believe that the court was of the opinion that the defenses set up were unfounded in fact. Many rulings of the court on points of law have to be made in the presence of the jury, regardless of their effect. When a ruling on a motion is about to be made which counsel fears may be damaging to his case, he may ask the court to let the jury retire. Any occurrence of a nature which violates the right to a fair trial can be urged as a ground for declaring a mistrial. In this case there was no request to retire the jury, and no motion for mistrial. The matter here complained of is not ground for a new trial.
The defendants, having admitted that they executed the note, that it was due, etc., assumed the burden of proving the substantive defense of set-off. The defense could prevail only by their showing, by a preponderance of the evidence, that C. J. Arnold was entitled to a distributive share of the estate. The Code of 1933,
Judgment affirmed.