Ambler v. Archer, 27598
| Decision Date | 15 March 1973 |
| Docket Number | No. 27598,27598 |
| Citation | 196 S.E.2d 858,230 Ga. 281 |
| Parties | Christine Rivers AMBLER et al. v. William Claude ARCHER. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The court erred in construing and applying its local rules relating to pre-trial and the pre-trial order so as to preclude the use by the caveators in the will contest from using witnesses which they had failed to have listed in the pretrial order, where a timely motion to amend the pre-trial order was made at the call of the case for trial and no inconvenience to the court or to the opposite party was occasioned by such failure, and where a less harsh penalty such as the taxing of costs or a contempt citation against counsel would have sufficed.
2. The court erred in refusing to permit counsel for the caveators to examine the propounder as to the existence of a will other than the one propounded.
3. The remaining grounds relate to matters not likely to recur on another trial or do not show error.
Flemister, Beasley, Baird & Slotin, Walter V. Beasley, Atlanta, for appellants.
Edwards, Awtrey & Parker, L. M. Awtrey, Jr., Annette M. Risse, P. Harris Hines, Marietta, for appellee.
Bessie Archer Moore died on February 4, 1971. William Claude Archer produced to the Court of Ordinary of Cobb County an instrument executed by the said Bessie Archer Moore on November 4, 1969, and propounded the same as her last will and testament. Christine Rivers Ambler, Marian Rivers Vivian and Sadie Rivers Lanier Kitchens filed a caveat thereto. After hearing evidence, the court of ordinary overruled the caveat and granted probate in solemn form. The caveators appealed to the Superior Court of Cobb County, the same being filed on June 11, 1971. On January 7, 1972, pursuant to a written request of the attorneys for the appellees, the court passed an order requiring counsel for all parties in the case to file with the court a proposed pre-trial order within 15 days from said date and to provide a copy of said proposed order to opposing counsel.
It appears from the evidence introduced on the trial of the case that the judges of the Superior Court of Cobb County, pursuant to the authority contained in § 83 of the Civil Practice Act (Ga.L.1966, pp. 609, 670; Code Ann. § 81A-183), have promulgated detailed and extensive rules respecting pre-trial practice and procedure. Rule 2(f), relating to the pre-trial order, provides that failure of counsel to appear and participate, without legal excuse, in the formulation and completion of the pre-trial order shall be deemed to be consent and agreement to the pre-trial order formulated and entered by the court in the absence of such counsel. Paragraph (g) of Rule 2 provides that the pre-trial order shall supersede the pleadings in the case, that thereafter the case shall be tried pursuant thereto, and that no issues in behalf of any party to the cause will be considered during the trial that are not expressly and clearly contained in the pre-trial order. This paragraph further provides: (Emphasis supplied). In Rule 2(i) the form and the content of the pre-trial order is set forth in minute detail. Paragraph 10 thereunder contains the following instruction: Paragraphs (a) and (b) of Rule 3 relating to the civil trade calendar provide:
Pursuant to the order of January 7, 1972, above referred to, counsel for the caveators transmitted to the court administrator of the Cobb Superior Court 'appellants' proposed pre-trial order' which did not conform to Rule 2(i) of the local rule. On January 26, 1972, counsel for the propounder transmitted to the court administrator propounder's proposed pre-trial order which substantially complied with the form and content prescribed by the rules. A pre-trial hearing was set by the court for February 3, 1972. It appears from a colloquy between the court and counsel occurring prior to the trial of the case that on that date the court declined to sign either of the proposed pre-trial orders and directed the parties to get together and agree upon a pre-trial order which the parties would submit within 14 days thereof for the court's signature. It does not appear that this directive was reduced to writing or ever entered as a formal order by the court. Counsel for the caveators contended that he had endeavored to contact counsel for the propounder on several occasions subsequent to the February 3rd pre-trial hearing. This contention was not disputed, but it does appear that counsel never met to draft an order as directed by the court. Thereafter, an order was signed on March 9, 1972, adopting the propounder's proposed pre-trial order as the pre-trial order of the court. This order recites that counsel for the caveators failed to appear at a pre-trial hearing which had previously been set for that date (March 9, 1972). The order thus signed by the court omits all reference to witnesses which caveators would use on the trial of the case.
Subsequently, pursuant to the local rules of court above quoted, the case was placed on the trial calendar of the Cobb Superior Court for the week of July 10, 1972, and was sounded for trial on July 13, 1972. Counsel for the caveators appears to have been notified by telephone that this would be done sometime during the week of July 3, 1972. On the afternoon of July 12, 1972, counsel for the caveators left in the judge's office a proposed amended pre-trial order, which, among other things, listed the witnesses which caveators intended to call on the trial of the case. Prior to the commencement of the trial itself, a lengthy hearing on this proposed amendment was held by the court out of the presence of the jury and at the conclusion of that hearing the court declined to allow the proposed amendment to the pre-trial order. The court, in the course of the trial, construed its rules as prohibiting the use by any party of any witness not listed in the pre-trial order except as to witnesses used only for impeachment. As the result of this construction, counsel for the caveators was not permitted to introduce to the jury the evidence of any witness (not included within this prohibition, however, was the testimony of the parties themselves), though he was permitted to complete the record by placing on the stand a medical witness whose testimony given outside the presence of the jury it is sufficient to say, if heard and credited by the jury, would have authorized a verdict finding in favor of the caveators. The jury returned a verdict in favor of the propounder, which verdict was made the judgment of the court and the caveators appealed.
1. Section 83 of the Civil Practice Act provides: 'Each court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with the provisions of this Title or any other statute.' Ga.L.1966, pp. 609, 670; Code Ann. § 81A-183. Section 16 of the same act, as amended, provides: Ga.L.1968, pp. 1104, 1106 (Code Ann. § 81A-116). In Sec. I of the Civil Practice Act, the legislature has enjoined the courts of this State to construe the act so as 'to secure the just, speedy, and inexpensive determination of every action.' Code Ann. § 81A-101. To this end the act should be liberally construed and applied. As was said by Professor John B. Reese, Jr., of the University of Georgia Law School, in an article appearing in 2 Ga.St.Bar J., pp. 419, 420, entitled The Georgia Civil Practice Act of 1966: Preliminary Observations: 'The Act is...
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