84 Ga. 142 | Ga. | 1889
A rule was brought against the sheriff' to distribute a sum of money in his hands, which was- raised by the sale of certain land belonging to William A. Nesbitt, deceased, under an execution in favor of Joseph Willingham against R. H. Nesbitt, administrator de bonis .non of William A. Nesbitt deceased. Mrs. Parrott, as administratrix of her deceased husband, who had obtained a judgment against R. H. Nesbitt, administrator of William A. Nesbitt, deceased, claimed to participate in this fund, and she was made a party to the same.
Joseph Willingham having died, his administrator was made a party. The jury found a verdict in favor of the movants, that is, that the ft. fas. upon which Nesbitt claimed the money had been paid off Nesbitt moved for a new trial, on the grounds that the verdict was contrary to law and to the evidence, and because the court refused to allow R. H. Nesbitt to testify as follows: At the time W. A. Nesbitt bought the land from Collins, Collins was owing the witness a balance of purchase money on the land which the witness had sold to Collins, of $700. Collins sold to W. A. Nesbitt for $3,500 before he had paid witness, and witness paid this sum and $400 additional to Collins on the land. The judgment against W. A. Nesbitt, principal, and the witness,' security on appeal, was for about $2,400 or $2,500. Witness had paid the balance of the purchase price, and never did agree to take the land from W. A. Nesbitt and pay the debt for it, because the debt or amount due on the judgment was far in excess of the value of the land. After witness got the land, being liable as security, and the judgment being older than the witness’s deed, he tried
. 1. We think the court was right in so ruling. Under the evidence act (Code, §3854), R. H. Nesbitt was not a competent witness, he falling within the exception embraced therein, that where the opposite party to the contract or cause of action in issue or on trial is dead, the other party shall not be a witness; and falling within that exception, he stood as to his competency where he would have stood by the common law, and at common law he would have been an incompetent witness.
2. Was the verdict of the jury without evidence to support it? We think, taking all the evidence in the case together (the facts are numerous and somewhat confused), that the verdict was supported by the evidence; and the judgment refusing a new trial is
Affirmed.