166 Ga. 850 | Ga. | 1928
This was an action for divorce, with a prayer for temporary and permanent alimony. The trial under review was the second trial of the suit for divorce, and temporary alimony of $50 per month had been granted by the trial judge. In her petition the wife made the claim that she owned a half interest in a described house and lot in the city of Atlanta, and asked that her
There were circumstances in the evidence which fuljy authorized the jury to find that the defendant was guilty of adultery as charged by the wife, though this was strongly and unequivocally denied. The parties met during the world war in Serbia, and the defendant asserted that he had never proposed matrimony to his wife nor thought of marrying her until his engagement, which in fact did not exist, was announced by one Colonel Haynes, a superior military officer, at a social gathering of officers and war workers in Europe, and that lie finally returned to this country with his wife, who was then a nurse and Eed Cross worker, and married her at her home in Massachusetts on January 3, 1920, merely for the purpose of preventing her from being humiliated by the public pronouncement of Colonel Haynes. The testimony of the parties was strongly in conflict on every material issue except one, and a verdict in favor of either party would have been authorized. In this state of the record, and in view of the fact that the jurors are the sole judges of the credibility of the witnesses, it can not be said that the trial judge erred in overruling the ground of the motion based upon the contention that the verdict was contrary to the evidence. As to the ownership of the property, there is no evidence disputing the fact testified to by the wife that from her earnings as a professor in the college in which her husband also taught her husband received the sum of $7700 and from other money which she turned over to him the additional sum of $700, making $8400 of
The fourth'ground of the motion for a new trial contains the insistence that a new trial should be granted, “because the verdict is contrary to the evidence and without any evidence to support it in so far as it seeks to award to plaintiff, by virtue of her having paid the purchase-price thereon, more than the interest which would be represented by the payment of $1030 towards the total purchase-price of $5250; and so far as said verdict found that she owned an interest in said property in excess of this amount, same was without evidence to support it.” This ground is a mere amplification of the general ground that the verdict is contrary to the evidence. But in so far as this specially directs our attention to the evidence
In the fifth ground of the motion the complaint is made that the court erred in intimating an opinion as to the evidence in the case, in violation of section 4863 of the Code of 1910. The provisions of this section are mandatory; and if there is a violation of its terms, a reversal is demanded. However, we fail to see in the language used by the court any intimation as to what had or had not been proved with respect to the matter which the court was calling to the attention of the jury. The court charged: “You will determine whether or not the defendant [plaintiff] is entitled to a half interest in the real and personal property. She contends she is entitled to a half interest in this property. The defendant admits that she has $950 in the property. I have left that blank, and under the pleadings and evidence in this case you could not make it more than a half interest, and you could not make it less than $950, you to fill in that blank whatever interest you think she is entitled to in the property.” It is assigned as error “that said charge amounted to an inference that under the evidence the plaintiff might be entitled to recover a one-half interest in said property, whereas, under plaintiff’s own evidence, plaintiff would not have been entitled to recover any interest in the real estate in excess of the interest purchased by the payment of $1030 towards the total purchase-price of $5250.” It appears from the verdict that the court submitted the form- of the verdict which left blanks as to several particulars in which the parties were in dispute, and then instructed the jury how these blanks should be filled according to how the jury found with reference to the diverse contentions of the parties. In the item referring to the property the court submitted to the jury for their guidance the following paragraph: “We find that the plaintiff is entitled to-interest in and to the real and personal property described in her petition.” In explaining to the jury how the blank verdict was to be of service to them the court merely stated to the jury, “I have left that, blank, and under the
The sixth ground of the motion is without merit. The plaintiff testified orally as to the prices paid for various articles of household goods bought by the parties and located in their house. Defendant’s counsel objected to the admission of this evidence, on the ground that her recollection of the prices paid was not the best evi
In the seventh ground it is insisted that the court erred in admitting in evidence two statements of George Muse Clothing Company, showing purchases by the defendant in March and April, 1926, the defendant having objected because these statements were not proved to be correct bills of George Muse Clothing Company, and because the items were all subsequent to the filing of the divorce suit. We fail to see how the admission of this testimony could in any view of the ease require the grant of a new trial. It appears from a review of the record that the purpose of introducing these bills was to show primarily the purchase by Dr. Tribble of an item of $10 called a “novelty,” and perhaps for the purpose of attempting to show extravagant expenditures by the defendant in the purchase of his raiment, as the bill for one of these months alone showed the purchase of two expensive suits of clothes in addition to a tuxedo. However, the defendant practically admitted the correctness of the accounts; and if his expenditures were extravagant, the nature of the purchases upon the account was a circumstance tending to support the contention of the plaintiff that the money turned over by her to him was expended for his own benefit and his social pleasures.
The eighth ground, in which it is insisted that the “court erred . . in charging the jury that they might find any amount for property rights or alimony, in excess of the property and money agreed upon in the separation agreement in settlement of the alimony suit which was introduced in evidence,” when considered in connection with the note of the trial judge, is without merit. The court certifies,'as to this ground, that “it was stated in open court by counsel for both parties on the trial of the case that the contract referred to was not insisted upon, and that it had been abrogated by both parties and was not binding on either party, and counsel for defendant insisted all through the case to the court and jury that plaintiff did not have any rights in the property under said contract, but that her interest in the property amounted to the amount which defendant claimed she paid, to wit, $950.” Nothing is better settled than that an assignment of error which is not ap
What we have just said controls the ruling on the direct exceptions to the decree. In the state of the record in this case, direct exceptions to the decree reach no further than the exception to the judgment overruling the motion for a new trial. While a party has the right by direct exceptions to bring in question the validity of the decree and to assert its invalidity because the decree includes either more or less than is authorized by the pleadings, the evidence, and the verdict, still the merits of the attack upon the decree must be determined by a review of the pleadings, evidence, and verdict and a comparison of each with the other. In this case, for reasons already stated in dealing with the judgment upon the motion for a new trial, and in view of the fact stated by the trial judge in his note to the eighth ground of the motion, it is quite clear that there is no merit in the assignment of error by way of direct exception to the decree.
Judgment affirmed.