No. 10502 | Ga. | Jul 10, 1935
Lead Opinion
Mrs. Effie McDonald, as temporary administratrix of .the estate of Leslie G-. McDonald, brought an equitable petition against Eula P. McDonald and others. The controlling issue in this case was whether or not a settlement which had been reached concerning funds, the proceeds of certain war insurance, had been procured by fraud on the part of the defendants. The issue between plaintiff and defendants was as to whom the money in the hands of the administratrix belonged. A settlement of this issue, as stated above, was reached. In her petition the plaintiff charges that the defendants formed a scheme and conspiracy to “cheat, swindle, and defraud petitioner out of her just rights, and to obtain money through false and fraudulent representations and threats and through duress;” that there was no consideration whatever for her turning the money over to the parties to whom she delivered it; and that under the facts which are fully
The following evidence (fourth ground of the motion) was duly objected to as irrelevant, immaterial, and prejudicial, and exception is taken to its admission over the objection: “The first wife of L. G. McDonald filed a petition in the court of ordinary to see whether she was entitled to this money going to the estate of L. G. McDonald. The first wife did not appear, but some lawyer appeared. I could not tell you where he came from. That was L. G. McDonald’s first wife intervening in my court. That petition was withdrawn before it came to trial, but was filed in my office, and is here, and was a part of the record in that court. This was an application by William Freeman as attorney for Mrs. Zelma McDonald, his first wife.” The court did not err in admitting this evidence. The plaintiff based her claim to recover the money from the defendants on the ground that the settlement of the controversy had been obtained by fraud, coercion, and duress on the part of the defendants; and the fact that this plaintiff had had a controversy as to these funds with another party could be considered
For similar reasons the court did not err in admitting the following evidence (fifth ground) : “Q. You and Dr. Sewell had talked about it, and he advised you to settle ? A. Yes, Dr. Sewell told me it was better. He didn’t advise me to go. to Griffin. He advised me rather than lose $30 a month and go to the penitentiary to give them this money.” This evidence was in answer to a question propounded to the plaintiff. If the advice of the Dr. Sewell referred to in this evidence was influential in leading the plaintiff to a settlement and in inducing her to make it, then that could be considered by the jury in passing upon the question as to whether it was fraud and false statements of the defendants that brought about the settlement which the plaintiff is seeking to have set aside. The same ruling is applicable to the evidence contained in the sixth ground of the motion. Likewise the evidence the admission of which is assigned as error in the seventh ground may throw some light upon the question of the plaintiff’s motive, 'independently of any fraud upon the part of the defendants. Likewise evidence of the marriage of Leslie G. McDonald to another woman (ground eight) was admissible as a part of the history of the plaintiff’s relation to the fund in question, and to show that she had reason to desire to get rid of the entire matter. And the same may be said of the evidence relating to the marriage and divorce of Leslie G. McDonald, upon the admission of which error is assigned in other grounds.
But the reasons given for holding that it was not error for the court to admit the evidence referred to above do not apply to the admission of the following evidence: “The understanding of our family was — I understood he [Leslie G. McDonald] had a divorce. When she got one, that gave him one. I found out that he didn’t have a divorce along about the time this matter came
The rulings stated in headnotes 3 to 10, inclusive, require no elaboration. The exceptions not specifically noted do not require a different ruling.
Judgment reversed.
Concurrence Opinion
concurring specially. I agree to the judgment of reversal and to the rulings in headnotes 2, 3, 4, 5, 6, and 9; but I can not concur in the ruling in headnote 1. The controlling issue in this case being whether the petitioner had been induced by fraud, threats, and duress to surrender her rightful possession of certain sums of money belonging to her as sole heir at law of her husband, L. G. McDonald, the court erred in admitting evidence as to the fact that at some undisclosed period of time another person had filed an application for letters of administration, which was dismissed; it not appearing that the plaintiff in this case was in any way connected with the dismissal of the- ease or procured the same to be done, especially since it appeared that the supposed petitioner for administration of the estate of the plaintiff’s husband was not shown to have ever appeared except through an attorney.
I do not concur in headnote 7, for the reason that in my opinion the pleadings and the evidence are such as involve the question whether the funds in litigation were trust funds; and in view of the statement approved by the court, to which this headnote refers, that this was one of the contentions of movant on the trial of the case, the attention of the jury should have been directed thereto and the jury properly instructed upon that subject.
I can not concur in headnote 8, to the effect that ,a written request was required in order to put the jury in possession of the legal proposition that an attempt to withdraw in vacation an appeal from the judgment of the court of ordinary is a nullity (Rasberry v. Harville, 90 Ga. 530, 16 S.E. 299" court="Ga." date_filed="1892-11-09" href="https://app.midpage.ai/document/rasberry-v-harville-5564869?utm_source=webapp" opinion_id="5564869">16 S. E. 299), and that if an appeal is withdrawn the rights of all the parties are the same as if no appeal had been entered (Code of 1933, § 6-502), and that no person shall be allowed to withdraw an appeal after entering one, but by the consent of the adverse party (§ 6-503). The attempted withdrawal of the plea is to my mind so interlocked with the evidence adduced by the plaintiff in support of her case as to evidence both fraud and duress, and to strongly support an affirmative, rather than a negative, answer to the question propounded by the court.