164 Ga. 450 | Ga. | 1927
Lead Opinion
Horace Peek filed his petition in the court of ordinary of Rockdale County, in August, 1923, for the probate of the alleged will of Mrs. Lizzie Peek Irwin, alleging that the. will had been lost or destroyed, attaching a copy of what purported to be the last will and testament, and' praying that the copy be established in lieu of the lost or destroyed original. It was alleged in the petition for probate that J. R. Irwin was the only heir at law of the testatrix. J. R. Irwin, at the September term, 1923, of the court of ordinary filed his caveat to the probate of the will, on the grounds, among others, that the purported will, a copy of which was sought to be probated in lieu of the original, was not executed by the testatrix, who at the time of its alleged execution was in a very low state of health, extremely nervous, and unable to control her thoughts and intentions; that by undue influence and persuasion of certain named persons, the testatrix was persuaded to disinherit the caveator;, that the pretended will was not the will of testatrix, etc.; and that if testatrix did in fact execute the original will, it was destroyed by her during her lifetime. The case was heard by the ordinary at the October term of the ordinary’s court, and the will was probated and admitted to record. Thereupon the caveator appealed to the superior court. In October, 1924, the propounders filed an amendment to their petition, alleging that the will was destroyed by the caveator. There were two mistrials before a jury. At the July term, 1926, there was another trial in the superior court; and at the conclusion of the pro
On the call of the case in this court the defendant moved to dismiss the bill of exceptions, on the ground that there had been no substantial compliance by the plaintiffs with the provisions of the Civil Code (1910), § 6093, to the effect that in motions for new trial there shall be a condensed and succinct brief of the material portions of the oral testimony, etc., and that what purports to be a brief of the evidence adduced upon the trial in the lower court is not such a brief as is required by law. A portion of the evidence is briefed in accordance with the requirements of the Civil Code, supra, but certain of the evidence incorporated in the brief consists of questions propounded by counsel to the witnesses, with their answers thereto. It is insisted by the respondent in the motion that this was set out purposely in order that the court might better understand the evidence sought to be elicited from the witnesses. Viewing the evidence as a whole, we can not say that there was no bona fide effort on the part of plaintiffs in error to brief the evidence as the law directs. This case, therefore, does not fall within the following class of cases, where the briefs of evidence were largely interspersed with colloquies between court and counsel, with statements of the stenographer, with the questions of counsel and the answers of the witnesses thereto, and large masses of documentary evidence, consisting of affidavits, copy suits, deeds, letters, and other writings, much of which was totally irrelevant. See Ryan v. Kingsbery, 88 Ga. 361 (14 S. E. 596); Smith v. Ray, 93 Ga. 253 (18 S. E. 525); Scott v. Maddox, 113 Ga. 795 (39 S. E. 500, 84 Am. St. R. 263); American Standard Jewelry Co. v. Goodman, 127 Ga. 543 (56 S. E. 642); American National Ins. Co. v. Lee, 145 Ga. 797 (89 S. E. 836); Roberts v. Rowell, 152 Ga. 97 (108 S. E. 466); Jones v. Hubbell, 152 Ga. 496 (110 S. E. 237); Crump v. Farmer, 154 Ga. 711 (115 S. E. 71); Bright v. Bright, 156 Ga. 42 (118 S. E. 427).
At the conclusion of the evidence for the plaintiffs the court granted a nonsuit. Our law declares that a nonsuit is not granted merely because the court would not allow a verdict for the plaintiff, to stand. But if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable de
But, we are of the opinion that a reversal should be had because the court failed to submit the questions' at issue to the jury under the evidence. The evidence for the plaintiff tended to show that before Mrs. Irwin went to the hospital, where she died within less than two weeks, she told her brother and sister that she had a will, and that she kept it in a cedar chest inside of a little box. Her sister, Mrs. Almand, testified: “On June 16 she went to the
The bill of exceptions recites that during the progress of the trial the propounders offered to prove by the testimony of Mrs. E. L. Almand that on the evening of the 28th of June, in response to an inquiry from witness as to where the keys were, the nurse, Miss Arnold, communicated to witness the fact that she (Miss Arnold) had given the keys to J. R. Irwin. Miss Arnold had previously testified to this fact; and when objection was made to the offered testimony, counsel for propounders stated to the court that the testimony of Mrs. Almand was not offered to prove the fact, but only for the purpose of proving that the fact was by Miss Arnold communicated to Mrs. Almand. The court held that the testimony was hearsay, and excluded it, and on this ruling error is assigned. We are of the opinion that the court erred in exclud
Judgment reversed.
Dissenting Opinion
dissenting. I concur in the ruling that the motion to dismiss the writ of error should be overruled. Where there has been no sufficient compliance with the requirements of the Civil Code (1910), § 6093, this court will not determine any question which is dependent upon consideration of the brief of evidence. Davis v. Gray, 163 Ga. 271 (136 S. E. 81), and cit. In Smith v. Ray, 93 Ga. 253 (supra), where the only error complained of was the grant of a nonsuit, the writ of error was dismissed. In that case the trial judge sent up a statement as follows: “I think the evidence may be better understood, as I conceived it to be, and that the Supreme Court can better understand the error complained of, by having before them, the evidence in full, as reported by the Stenographer and incorporated in the foregoing bill of exceptions.” This court ruled that the statement was “without effect, inasmuch as statutory requirements can neither be modified nor dispensed with on account of any opinion a member of the judiciary may entertain.” Compare Price v. High, 108 Ga. 145 (33 S. E. 956), where Chief Justice Simmons elaborately discussed the question, citing numerous authorities, but where the court affirmed the judgment instead of dismissing the writ of error. The evidence sent up.begins on page 2 of the bill of exceptions and ends on page 31. The will and.letters cover substantially five pages. Of the remaining pages, all except one offend the rule against containing questions and answers to a more or less degree, and on one
I can not concur in the ruling made in the fifth headnote. The record shows, and counsel concedes, that Miss Arnold, as a witness in the case, swore to the fact that she had given the keys to the tin box to J. E. Irwin. Afterwards it was sought to prove by Mrs. Almand that Miss Arnold had communicated that fact to her. The latter evidence was excluded. It is difficult to see any injury from such ruling to complainant. The brief of plaintiff in error states that the ruling “is not a matter of any very great importance.” The fact was shown by Miss Arnold, and the evidence of Mrs. Almand was certainly not so material and beneficial that, even if admissible, it would require a reversal.
I am authorized to say that Mr. Justice Atkinson concurs in this dissent.
Concurrence Opinion
specially concurring. I concur in the judgment in this case and in the ruling made upon the motion to dismiss the bill of exceptions. Failure to brief the evidence is not ground for dismissal of the bill of exceptions, but it does authorize this court to disregard the evidence and to decide only the questions made in the record which can be deeidecl independently of the evidence.