*1 569 quirеs a renewed motion to the court at a later stage of the trial require the court to make a final naling objection, objection the absence which the will be deemed to have been ground waived. This the motion new trial recites complained subsequently evidence of was ruled out but ruling presence made оutside the jury, was jury and the instructed charge court either the court’s not to consider elsewhere the evidence. I construe this statement in the amended motion refer new to the conditional herein ruling discussed and consider ruled out the evidence due to subsequent failure of the defendant to in- troduce question. into evidence the contract in any In event, ruling by presence the court outside evidence was out did not have effect for the reason that way would have no of knоwing ruling about it, such subject proper assignment would have been to a of error. How- ever, assignment no of error made on that ruling, such complaint was made. The not to ruling, such a judgments of the court overruling motions to‘ rule it out. These judgments were & conditional. P. Atlanta W. R. v. Truitt, Co. (2) (16 Ga. 320 E. 273); Milligan S. 2d v. Milligan, 209 (1) 459). Ga. 14 E.S. 2d Accordingly, presented no issue is ground of amended motion trial on the ques- new tion of the admissibility evidence to which the interposed.
37628. SOUTHEASTERN METAL PRODUCTS, INC. v.
DeVAUGHN. May 18, 1959.
Decided *3 Harris, Harris, Pritchard, & C. Robert B. Arnold Charles Nancy in error. Phillips, Pat Tindall, & D. D. Tindall, Tindall, Jr.,
Tindall J. J. J. F. Kemp, contra. Judge. (Ann-.) Under Cоde 38-1801 “in the
Nichols, either or defendant cases, per all civil shall be opposite or party, mitted make one whose prosecuted benefit such suit or defended, immediate is or agent any person or agent party, said whose imme prosecuted or defended, diate benefit such suit officer or corporаtion agent corporation when is such or for party, prosecuted or defended, witness, benefit such suit whose *4 privilege subjecting thorough sifting of to- a and such witness privilege with the further of examination, impeachment, and as being behalf if the witness had testified in his own that, prior fact to the trial, cross-examined.” The mere presidеnt deposition of the of the defend plaintiff had taken a subpoenaed “to- truth corporation, testify and the ant who was prevent being of his called say рlaintiff”, in behalf would not by plaintiff at the for purpose the case of cross- examination, deposition where said was not introduced in evi dence at the trial. opposite party
“Where the has been called as a witness for cross-examination within it is the discretion of the court as to to whether questioned by allоw such witness to be own his attorney at the conclusion of such examination by opposite party.” Chambers, v. 94 Ga. (3) Jones S. E. 2d 335). Accordingly, the trial court not err in did permitting plaintiff to call said witness refusing cross-examination or in request further defendant’s examination.
It is well settled that “admissions or propositions made compromise with viеw to a are proper not evidence.” Code Assuming, deciding, 38-408. but not assignment that an upon grant error upon the trial court’s failure to mistrial motion by counsel made not error, at the time objectionable alleged are remarks uttered judge, the trial only but such motion was made before the returned verdict, meritorious, and this is quеstionable, its indeed under the record case court, this the trial after used the word in, “compromise” jury, clearly extensively his remarks they instructed the should not consider the question compromise as it was inadmissible and further did withdraw any and all reference to same from their consideration. objectionable made the court are as follows: “Mem remarks the, objection jury, testimony bers of was made to the line ground it leading up compromise. to an offer of Of you course, recоgnize compromise an offer of be inadmissi would ble because if they compromised, trying had we wouldn’t be here case. So, this I’m going sustain his extent might any bearing have whаtever offer of compromise any element of it, long questions cam as he confine his to the things nothing that have whatever do with some settle ment, offer of оr compromise, settlement all right, it’s he comes in anything offer of compromise, about it would be in this trial at stage game. admissible That’s talking Thereupon what we arе about.” counsel for the in error moved the court ask as follows: Mr. Harris: “I’ll
574 your you’re made, Your Honor to- include in remarks there saying compromise." not been оf trial has an offer The there made the additional to following court then and statement the jury: opinion offering The court: “You understand I’m no what- any ever of will the judge kind. You facts and determine what place right has taken time I whenever comes. know the don’t happened. conversations, to leading up telephonе what has He’s any I’m saying they going get saying and are to into he’s that. any Any- offer element of it admissible. compromise, of is not agreeable thing contract and else relevant to this is admissible.” colloquy From the for the above between counsel in the the in- court, considering error and and trial court’s entire to to jury “compromise”, structions with reference it the usage “compro- the trial of the obvious that should court’s word to- be such error, be construed this court error was mise” stating to сlearly rendered the trial court the harmless compromise inadmissible; offers in are that he was that sustain- bearing ing might that it have to the extent on of was comprоmise, it; an offer in that he element opinion anything any kind; no of and that offering whatever disregard compromise offer it as had been said about an in v. Livingston, 35, not 13 Ga. admissible. Luke 778). E.S. grounds general of usual the motion for trial new been in brief expressly abandoned not considered. error, are
Accordingly, judgment denying of the trial court the mo- for new trial must be affirmed. tion Judgment Townsend, Quillian, Gardner, J., P. and affirmed. JJ., Carlisle, concur. Felton, J., J., C. and dissent. J., dissenting. O. J., We believe
Felton, Carlisle, justice of fair trial of this interest сircumstances require grant of a trial. do not case new While we advocate objectionable every question time an grant a new only case where the men- a witness think that in this asked we compromise jury’s part presence tion of in the they while juiy court could have concluded that case. compromisе into room came out evidence the, he was requested state The court was compromise. been offer of jury that there had an telling the opinion. еxpressed no that he not do but stated This court did jury reached made before the for a mistrial was The motion take attempt to a chance movant did not and the verdict question close point. This is a then make his verdict and uphold the motion practice would be best believe the we *6 peculiar facts. for mistrial under INC., COMPANY, EGG KENDRIX v. SUPERIOR 37648. al. et exceptions Judge. motion the bill 1. A to dismiss Townsend, plead- grounds certain has been made in this court specified material were not in the trial court ings filed exceptions; that the in the bill parts record in the costs court in error has shown that money; for the eventual condemnation paid filed a bond relative proper error action plaintiff ini did not take that the Bankruptcy Court, in the order of the referee garnishment attack the properly error did not in grounds would of thеse proceeding in the State courts. None exceptions in case. be cause dismissal the bill of record there no motion diminution first, to the As refer to apparently party. either second and third The judicatories. appeals from inferior applying Code 6-105 the merits of the case. appear gu remaining grounds exceptions bill of is denied. The motion to dismiss the judgment Superior Company, Inc., obtained a consent Egg 2. County of Fulton Kendrix in the Civil Court against Hazel $2,341.77 plus principal sum of 15, 1957, in the on October action on simple attorney’s fees, being the same interest months, four in same amount. Within promissory note voluntary judgment debtor filed a 29, 1957, on October District Court bankruptcy in the United States petition in dis- scheduled, and she judgment duly in -the which September 19, 1958. Thereafter charged bankruptcy garnish- an affidavit and bond judgment creditor filed Kroger County against of Fulton Court ment in the Civil paid latter into court garnishee and the. Stores, Inc., as