McKibbon v. Folds

38 Ga. 235 | Ga. | 1868

McCay, J.

1st. McKibbon, if he is máde a party to this proceeding, at his own motion, must take the case as he finds it. He can take no exceptions, not good in the mouth of the defendant, to whose care he has attached himself. If there was a good objection to one of these commissioners, it ought to have been made at the time of the appointment. The then defendant failed to object. It is, therefore, waived, and McKibbon, coming in now, is bound by that waiver.

2d. There is some confusion in the cases, on who has the right to open and conclude, in questions of this character. The current of our decisions is, that it belongs to the party moving; instituting the proceedings, and having power to control them. Weeks and wife vs. Seago, 9 Ga., 199; Harrison vs. Young, 9 Ga., 359; Dickerson vs. Croom, 24 Ga., 211. The case of Johnson vs. Martin, 25 Ga., 268, at first reading, would seem to conflict with these cases. There, however, the Court puts its decision on the ground that it was purely an issue of fraud, and as, in such a case, the burden of proof must be on the party charging the fraud, he has the right to open and conclude.

In the case before us, though the only question was in sustaining the report, yet, in such issues generally, the fact of widowhood, the seizin, and other questions might arise, and our inclinations are, to hold that the applicant for dower holds the affirmative, and must open and conclude. It was too late, at any rate, after the plaintiff had gone on, and a reply had taken place, to make the question. Whoever opens the case, with the evidence, if he has a right so to open, has the same right in the argument.

3. The statute is express, that (except as to the dwelling, which includes what is necessary to its enjoyment,) the dower is to be laid off, having respect to shape and valuation. Section 3969. See, also, section 1753 Irwin’s Code. We do not think the jury ought to set aside the return because of a trifling excess of value on one side or the other. But it is their duty to consider the value of the lands set off, as well as that left, and any thing, which adds to that value, is matter for consideration.

We hold, therefore, that the Court erred in instructing the jury that they were not to consider a log-house or other shanty. That is true, if it has no value, but they must consider the value of the whole, including every thing which adds to, or lessens, that value.

Judgment reversed.