Allmond v. Johnson, 58594

• Decision Date: 11 January 1980
• Docket Number: No. 58594,58594
• Citation: 264 S.E.2d 544,153 Ga.App. 59
• Parties: ALLMOND et al. v. JOHNSON et al.
• Court: Georgia Court of Appeals

Page 544

264 S.E.2d 544

153 Ga.App. 59

ALLMOND et al. v. JOHNSON et al.

No. 58594.

Court of Appeals of Georgia.

Submitted Oct. 17, 1979.

Decided Jan. 11, 1980.

David H. Fink, Robert H. McDonnell, Atlanta, for appellants.

Gary D. Zweifel, Atlanta, for appellees.

BIRDSONG, Judge.

The parties to this appeal are all brothers and sisters. Appellees originally sought to remove appellants as co-executors of their parents' estate, and sought other relief, in probate court. From an adverse ruling, the co-executors Allmond and Clayton Johnson appealed to DeKalb County Superior Court. On trial de novo, the jury returned a verdict adverse to appellants, the co-executors, and they appeal to this court.

1. At a pretrial conference both parties agreed, and the trial court ruled, that the decision of the probate court in the proceedings from which the appeal was made to the superior court, would be excluded from the jury. In his charge to the jury, the trial judge stated that the case had come to the superior court "on an appeal filed by Mr. Clayton N. Johnson, Jr. and his sister Mrs. Johnnie K. Allmond, as co-executors of the estate . . . from a decision of the probate judge rendered . . . as a result of a petition filed by Mrs. Linda June Freeman and William Edward Johnson as heirs (in which they) sought to have their brother and sister removed as co-executors for the following reasons . . ." The trial judge then read the petition which had been filed in the probate court by the appellees, and stated that "a hearing was had before the Probate Court and the Probate Court then issued its Order . . . and Johnnie K. Allmond and Clayton N. Johnson, being dissatisfied with that decision or order of the Probate Court filed its notice of appeal to this Court."

We agree with the appellants that the charge as given in this case constitutes prejudicial error, requiring a new trial. We are aware of what has been said in other cases about the propriety of apprising a jury on trial de novo of the proceedings below, in any context (see Kelley v. Kelley, 129 Ga.App. 257, 260, 199 S.E.2d 399); of the practice of superior courts to hand the papers of the case out with the jury (see Kelley, supra; Shuman v. Smith, 100 Ga. 415, 28 S.E. 448; and Edge v. Edge, 134 Ga.App. 162, 164-165, 213 S.E.2d 540); or of giving an excursus of the history of the prior proceedings so the jury will "have a better understanding of the case before it" (Edge, supra); but we can find no justification for advising the jury which party filed the appeal after being dissatisfied with the decision of the probate judge. The trial de novo considers the whole merits of the case anew (Code § 6-501), and passes original judgments on the questions involved as if there had been no previous trial (Hall v. First Nat. Bank, 85 Ga.App. 498, 69 S.E.2d 679) and the superior court, on trial de novo, has the same jurisdiction as was possessed by the court of ordinary (Knowles v. Knowles, 125 Ga.App. 642, 645(1), 188 S.E.2d 800). The jury does not review and affirm or reverse the rulings of the probate judge, but hears all issues anew as if there had been no previous trial, Hall, supra. While Code § 6-501 does provide that the appeal "brings up the whole record from the court below," it does not provide that the record including the decision below, is to be given or told to the jury; and we cannot see why it should be, since the jury is to determine all the issues "anew," and if the jury does rely upon the record below or allow it to influence their own decision, reversible error is committed. See Russell v. Brunswick Grocery Co., 120 Ga. 38, 47 S.E. 528; Riggins v. Brown, 12 Ga. 271. Code § 6-501 is explicit in establishing the appeal in superior court as being a trial de novo (see Robinson v. McAlpin, 130 Ga. 489, 490-491, 61 S.E. 115).

In the case before us, we can perceive no reason in law or fact, that the jury should have been made aware that there had been a decision in that court with which the appellants were "dissatisfied" and from which they had appealed. The issues and factual questions in this case are large and somewhat complicated; while there is evidence to support the ultimate verdict of the jury, which was the same as that of the probate judge, we cannot say the evidence is overwhelming or that the verdict given was demanded by the evidence. We therefore cannot say the court's charge, which in practical effect told the jury that the probate judge had already ruled against the appellants and removed them as executors, was harmless error. Hand v. Brown, 144 Ga. 272, 86 S.E. 1080; Gibson v. Wilson, 130 Ga. 243, 60 S.E. 565; Hopper v. Wilson, 128 Ga. 776, 58 S.E. 359. Particularly in a case of this factual complexity, the temptation may be too great for the jury, having been so charged, to conclude that since the probate judge ruled against the co-executors, they should rule likewise. We cannot sanction that possibility, especially since there is in the first place, no reason for the trial court, either expressly or impliedly, to tell the jury what had been the probate judge's decision on the issues they must decide afresh. To do so places an undue burden of persuasion on the party who lost below; it robs the superior court proceeding of its nature as a trial de novo, and deprives the appellant there of his right to have the issues tried anew. See Hardwick v. Georgia Power Co., 100 Ga.App. 38, 46, 110 S.E.2d 24.

2. Error is ascribed to the trial court's charge in that, in several particular enumerated instances, the charge unduly emphasized certain acts or circumstances as being "grounds for removal," or for forfeiture of...