170 Ga. 847 | Ga. | 1930
(After stating the foregoing facts.)
Each of the three general grounds in the motion for new trial (1) that the verdict is contrary to the evidence, (2) that it is contrary to law, and (3) that it is contrary to the principles of justice and equity, was argued at unusual length by the very learned counsel for plaintiff in error; but after a very careful consideration of the evidence we are compelled to hold that the evidence is sufficient to authorize the verdict. It is true- that a debtor may bona fide prefer one creditor to another, and this right appertains as much to a husband in favor of his wife’s rights as to any other creditor. Krueger v. MacDougald, 148 Ga. 429 (96 S. E. 867). It does not matter even if a debtor, in preferring one creditor to another, entertains the purpose of hin dering and delaying other creditors, if that purpose is unknown to the grantee of the deed. This has been repeatedly held by this court; but the record in this case shows that the debt due by the defendant in fi.-fa. to his wife was not secured by deed at the time the debt was created; that the deed was executed two weeks after the bank closed; that the claimant knew of the closing of the bank, and knew that her husband was liable to be assessed and a fi. fa. issued against him. She was aware of the large indebtedness on the part of her husband to the bank; and there are other circumstances in the evidence which would authorize the jury to find that if she did not have actual knowledge of her husband’s purpose to hinder, delay, and defraud creditors, she had reasonable grounds to suspect it. “In considering transactions between husband and wife, slight circumstances, under certain conditions, may be sufficient to satisfy a jury of the existence of fraud; but in all such cases the bona fides of the transaction is to be determined by the jury. In the present case it can not be said that the evidence demanded a finding other than that returned by the jury.” Brooks v. Griffin, 10 Ga. App. 497 (73 S. E. 752). In Dixie Mfg. Co. v. Ricks, 153 Ga. 364 (112 S. E. 370), this court approved a charge that even though there was a bona fide indebtedness due by the mortgagor to the mortgagee, if the mortgage was made with intent to hinder, delajq and defraud creditors of the mortgagor, the mortgage would be void.
Ground 4 of the motion for new trial complains of the ad
'It is very earnestly insisted that the court erred in refusing to allow plaintiff in error the opening and concluding arguments; and she relies upon the ruling of this court in Lamkin v. Clary, 103 Ga. 631 (supra). No rule is more fixed than that the right of opening and concluding the argument is vital, and that the improper refusal thereof entitles the litigant to a reversal of the judgment. Yet, as far back as the decision written by Chief Justice Jackson in the case of James v. Kiser, 65 Ga. 515, it was held th^t the opening and conclusion will not be awarded the claimant in a claim case if he sits silently by and compels the plaintiff in fi. fa. to prove his case, and delays until all the necessary evidence has been submitted by both' parties to ask for the opening and concluding arguments. In Taylor v. Brown, 139 Ga. 797 (77 S. E. 1062), where the facts were very similar to those of this case, it was ruled: ""Where, in a claim case, the claimant, before the introduction of evidence commenced, did not admit possession in the defendant in execution, or in any manner claim the right to assume the burden of proof and to open and conclude the argument, but permitted the plaintiffs in execution to assume the burden of proof and to open and conclude the introduction of evidence (each side introducing evidence), it was too late, after the evidence had closed and before the argument began, to assert for the first time the right to the opening and conclusion, on the ground that the entry of levy (which the plaintiffs in execution had introduced in evidence) recited that the property was levied on ‘as the property of, and in possession of, the
Learned counsel for plaintiff in error contends that she was entitled to the opening and concluding arguments, upon two grounds, (1) that the entry of levy failed to state who was in possession, and (2) that “plaintiff in fi. fa., relying on possession to make out a prima facie case and on introduction of the warranty deed regular on its face, executed and recorded before the execution was issued
Judgment affirmed.