49 Ga. App. 205 | Ga. Ct. App. | 1934
Blackshear Manufacturing Company obtained judgment against Mrs. B. A. Scruggs and J. E. Scruggs as principals and G. W. Houston as surety on a promissory note. The execution issued thereon was levied on certain personal property which, according to the return of the levying officer, was “found in possession of John E. Scruggs and B. A. Scruggs,” the two principal defendants. J. B. Scruggs, son of said defendants, interposed a claim to the property, and upon a trial of the issue the jury returned a verdict finding the property subject to the levy. The claimant made a motion for a new trial, which was overruled, and on this judgment he assigns error.
The contention of the claimant is that the defendant in fi.
A judgment in favor of the plaintiff company was formerly reversed by this court because of the insufficiency of plaintiff’s evidence. See 45 Ga. App. 855 (166 S. E. 249). We are thus confronted with the fact that two separate juries have rendered a verdict in favor of the plaintiff and against the claimant; that these verdicts have been approved by the trial judge; that the jury are the exclusive judges of the credibility of witnesses, and the final arbiters on questions of fact; and that this court can not invade the province of the jury or annul their findings on questions of fact if supported by any evidence. Bearing this in mind, we look to the record to see if there was any evidence adduced on this the second trial of the case which would authorize a verdict for the plaintiff in execution and take the case out of the former ruling of this court.
There were some facts established on the trial now under review which, considered in connection with other evidence adduced and the exclusive right of the jury to pass upon the credibility of witnesses, authorized the jury to discredit the claimant’s contentions and find in favor of the plaintiff in execution. One of the contentions of plaintiff in execution was that the property was found in possession of the two principal defendants in execution, as shown by the return of the levying officer, and that it remained on the farm with them after the alleged sale to their daughter. The daughter’s explanation of this, as shown in the former decision of this court, was "that her mother and father lived with her; that the property had never been moved from the place; that her father continued to work on the farm but not as manager; that since she bought the place she had been running it herself; . . that she takes care of her father and mother on the farm.” This explana
Plaintiff in execution introduced considerable evidence to show that Mrs. B. A. Scruggs and her husband J. E. Scruggs, defendants in execution, were in charge of the property and managing the farm, contrary to the testimony of Mrs. Dixon. G. W. Houston swore: "Mr. Scruggs was looking after the management of the farm on said place. I saw him in charge of this place several times since September 16, 1929 [the date of the alleged sale to the daughter, and when the daughter claimed to have assumed management]. Since that time I have also seen Mr. Scruggs hauling tobacco to market and handling the sales in his own name. I have seen this a number of times. I have never seen Mrs. Vivian Scruggs Dixon having anything to do with the sale of any of the products of the farm.” The evidence further shows that witness M. L. Odum '"asked Mrs. Dixon if she didn’t have some mules to sell [mules being part of the personal property levied upon], and she said that she did not, that she had never owned any mules. I then told her that I heard she had bought some mules from her mother, and she said that was all a sham piece of business to keep her father and mother from having to pay a debt they owed.” Plaintiff in execution further proved that in the first part of September, 1929 (just before J. B. Scruggs claimed to have loaned his sister $375 to buy the propertjr in question on September 16, 1929), J. B. Scruggs stated that he was "busted” and was endeavoring to borrow $20.
The foregoing, and other evidence, tended to create a doubt as to the bona fides of the transactions between mother, daughter and brother. In Fouts v. Gardner, 157 Ga. 362, 365 (121 S. E. 330), the court said: "There was evidence tending to show that J. H. Pouts remained in possession of the land after he conveyed the land to the claimant, S. L. Pouts. This, if true, would amount lo a badge of fraud; and the jury should have been instructed that if the evidence showed that the claimant remained in possession after the sale, this would amount to a badge of fraud, and they should scan with care the transaction.” (Italics ours.) Under the foregoing ruling of the Supreme Court and the facts of the instant case,
The evidence authorized the verdict; the three special grounds of the motion for a new trial attacking the charge of the court show no cause for a reversal; and the court did not err in overruling the motion for a new trial.
Judgment affirmed.