Adair v. Adair

• Decision Date: 30 June 1869
• Citation: 39 Ga. 75
• Parties: C. D. ADAIR, adm'r of JNO. R. McDONALD, plaintiff in error. v. JOHN ADAIR, ex'r of EDWARD ADAIR, et al., defendants in error.
• Court: Georgia Supreme Court

39 Ga. 75

C. D. ADAIR, adm'r of JNO. R. McDONALD, plaintiff in error. v. JOHN ADAIR, ex'r of EDWARD ADAIR, et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1869.)

Secondary evidence. Before Judge Parrott. Murray Superior Court. April Term, 1869.

*This is the case reported in 38 Ga. R. 46. Upon the new trial there ordered by this Court, the bill for injunction and the action for ejectment were, by consent, tried together. There was a verdict in favor of complainants, reforming the deed and perpetually enjoining the action of ejectment.

On the former trial, Collins McDonald had testified to matters material to C. D. Adair. His testimony was, on the motion for new trial then made, reduced to writing, agreed to by the counsel in the cause, and approved by the then presiding Judge. Afterwards, he left Georgia, and went beyond the Mississippi river, among the Cherokee Indians. C. D. Adair swore that he had been unable to learn to what part of the Cherokee Nation of Indians Collins McDonald had gone, and then, by his counsel, offered to read in evidence said testimony so reduced to writing. The Court refused to allow it read as evidence.

A motion for new trial was made because of this refusal, and on many other points. Error is assigned upon the refusal of a new trial, on each of said grounds, but the others are immaterial, as they were not decided by this Court.

W. H. Dabney, W. Akin, D. A. Walker, for plaintiffs in error, cited Walker v. Walker, 14 Ga. R., 249; Smith v. The State, 28 Ga. R., 22-24; Irwin's Code, sees. 3729, 3714; Harris v. Cannon, 6 Ga. R., 388-9.

C. D. McCutchin and R. J. McCamy, for defendants in error, cited Ex'r of Riggins v. Brown, 12 Ga. R., 275.

WARNER, J.

This was a motion for a new trial in the Court below, whichwas overruled, the overruling of which is now assigned for error here. In regard to the main question, which was argued in reference to the reformation of the deed, some of the Court entertain doubts, whether the evidence was sufficient for that purpose. We therefore express no opinion on that branch of the case. We are all of the opinion that the evidence of Collins McDonald, given on a *former trial, and reduced to writing, should have been admitted under the statement of facts disclosed by the record. It appears, that on a former trial of this case, Collins McDonald was sworn and examined as a witness, his testimony was reduced to writing, agreed to by the counsel in the cause, and approved by the Court. Since the trial, McDonald had left the State, and gone to the Cherokee Nation of Indians, west of the Mississippi river, but to what part of the Cherokee Nation he had gone the plaintiff had been unable to learn. The written evidence of Collins McDonald, sworn to on the former trial, was offered to be read to the jury, and ruled out by the Court. By the 3729th section of the Code, it is declared, that "the testimony of a witness...