37 Ga. 205 | Ga. | 1867
The record in this case discloses the fact that Mrs. Mary Jane King for herself and in behalf of her two minor children Beatrice and Ada, filed her. bill in Floyd Superior Court in June 1866, against Joshua King, Daniel R. Mitchell, Wm. Franklin and Henry A, Gartrell, praying for a discovery and account, in relation to a certain promissory note executed by King for the sum of $4,300.00, which note, it is alleged, was trust property, executed for the benefit of Mrs. King and her two minor children, at or about the time of her separation from her husband; that the consideration of said note was the amount of property she was entitled to receive out of her husband’s estate, as agreed on by the parties at the time of their separation. It also appears that Franklin was appointed trustee for Mi’s. King, and, as such trustee, placed the note for $4,300.00 in the hands of Daniel R. Mitchell, an attorney at law, for collection; that suit was ixistituted thereon in the name of Franklin, the trustee, and judgment obtained against
As we feel constrained to order a new trial in this case for errors which we find in the record, committed on the former, trial, we shall express no opinion upon the facts involved in it, but simply state the general rules of the law which are applicable to this particular class of cases.
The first ground of error assigned to the judgment of the Court below, which we will now consider, is that which relates to the order of the argument of counsel before the jury. The Court below, ruled that, as Mitchell; one of the defendants, had not introduced any evidence upon the trial of the cause, his counsel should be entitled to conclude the argument before the jury, although some of the other defendants had introduced evidence upon the trial. It is a well settled rule of practice in our courts of law upon the trial of cases before the ' jury, that, if any of the defendants introduce evidence upon the trial, the plaintiff is entitled to open and conclude the argument. By the 4144 section of the Eevised Code, the same rule of practice is to be observed in the trial of
The next ground of error assigned in the record which we will now consider, is that relating to the charge of the Court to the jury, ás to the right of the complainant to recover against the defendants in this cause, in the name of the complainant, who sues for herself and her two minor children. The Court below charged the jury, that “complainants ought not to recover', because such recovery would be no protection to any of the defendants, and that they would be liable to be again harassed with suits by other next friends, by the lawful trustee, or by the minors after Mrs. King’s death.” If the proposition asserted by the Court, in its charge to the jury upon this branch of the case, be a sound legal proposition applicable to the state of facts then before it, the verdict ought to have been for the defendants, irrespective of the merits'of the cause established by the evidence upon the trial. No matter what may have been the merits of the complainant’s cause under the evidence, still, under the charge of the Court she would not be entitled to recover a verdict against the defendants, if that verdict, or decree rendered
The charge of the Court as to the liability of Gartrell, one of the defendants, is also excepted. to, and assigned as error upon the trial of this cause. The Court charged the jury, in connection with other matters, in the following words, as disclosed by the record, “ Nor is there any ground, or reason, for a recovery against him, under the law, and evidence in this case.” By the 3143 section of the Eevised^ Code, it is declared to be error, for any Judge of the Superior Courts in this State, in any case, Avhether civil, or criminal, or in equity, to express, or intimate, in his charge to the jury, what has, or has not been proved. Although the Court did not expressly state what had, or had not been proved, still, wre think, that there was a very strong intimation by the Court, that the evidence in this case was not sufficient to authorize a verdict against that defendant. It is the exclusive province of the jury to judge of the effect and weight of the evidence submitted to them, and they should be left free to decide upon it, without any expression or intimation upon the part of the Court, as to whether it is sufficient or not to authorize a recovery. The Court is to give them in charge the law applicable to the facts proved, and the jury are .to find what has, or has not been proved by the evidence. The effect of the charge of the Court in this case was to withdraw from the consideration of the jury the evidence in relation to Gartrell’s liability,' to account to the complainant for any portion of the trust property in his hands.
There is another portion of the charge of the Court to the jury, which we also, think was erroneous, in view of the facts of this case, and that is in relation to the trustee Franklin being “ forced to receive Confederate money by some vigilance committee of which Mitchell was a part, or by military force.” We have been unable to find any evidence in the record, in regard to any vigilance committee using force, or as to any military force being used, which would authorize the charge of the Court as given to the jury upon that subject. The charge of the Court should always be based upon the facts as proved, and not upon an assumed state of facts which have no existence under the evidence in the case.
There were many requests made in writing by the complainant’s counsel for the Court to charge the jury, which were argumentative and otherwise objectionable in view of the facts of this case, and in our judgment they were properly refused by the Court, except the one as to the liability of the defendant, Gartrell. In our judgment, he is liable to account for the value of the trust fund which he received
The liability of the defendants to pay the amount of the note in good money now, will depend upon the bona jides of the parties who paid and received it. If there was a fraudulent collusion between King and Mitchell and Franklin, the trustee, or between King and Mitchell, for the purpose of paying off this trust debt in Confederate money, for the purpose of injuring and defrauding the cestui que trusts of the same, or any part thereof,- then the payment of this trust debt in Confederate treasury notes ought to be set aside. But if, on the other hand, the judgment obtained against King by the trustee, was paid by him in good faith in Confederate treasury notes, the common currency of the country at that time, to Mitchell, the attorney for the trustee, and by Mitchell the attorney was paid over to Franklin the trustee, in good faith, who received the same without objection, then. King will be protected in the payment of the judgment to Mitchell, and Mitchell will be protected in the payment thereof to his client, Franklin, the trustee.
Trustees having the possession of trust property are bound to ordinary diligence in the preservation and protection of the same. Revised Code, section 2300. If Franklin, the trustee, did not wish or desire to receive Confederate money in payment of his judgment against King, then he ought to have notified Mitchell his attorney, not to have received it. "Whether Franklin, the trustee, used ordinary diligence under the circumstances, for the protection of the trust property, is a question for the jury to decide from the evidence, when this cause shall be submitted for another hearing.
Let the judgment of the Court below be reversed and a new trial grantéd.