Armstrong v. Ballew

• Decision Date: 01 June 1903
• Citation: 118 Ga. 168,44 S.E. 996
• Parties: ARMSTRONG. v. BALLEW.
• Court: Georgia Supreme Court

44 S.E. 996

118 Ga. 168

ARMSTRONG.

v.BALLEW.

Supreme Court of Georgia.

June 1, 1903.

ERROR—RECORD—CASES TRIED TOGETHER-REVIEW OF EVIDENCE.

1. Where two cases between the same parties are, by agreement, simply tried together, and a separate verdict and judgment is rendered in each, and a motion for a new trial is made in one of them and overruled, and such case is brought by writ of error to this court, only the record in that case can legally be brought up; and, if the record in the other case is also sent up with the bill of exceptions, this court cannot consider it.

2. The claimant being the only witness in her behalf, and there being before the jury facts and circumstances apparently in conflict with her testimony, this court cannot say that the jury were not authorized to find against her testimony.

(Syllabus by the Court.)

Error from Superior Court, Gordon County; A. W. Fite, Judge.

Claim case by M. S. Armstrong against J. M. Ballew. Judgment for defendant, and claimant brings error. Affirmed.

Starr & Erwin and Cantrell & Ramsaur, for plaintiff in error.

Harkins & Dodd and R. J. & J. McCamy, for defendant in error.

FISH, J. From the bill of exceptions and the record in this case it appears that two claim cases, in which J. M. Ballew was the plaintiff, L. D. Armstrong the defendant in fi. fa., and Mrs. M. S. Armstrong the claimant, were, by consent of the parties, consolidated simply to the extent of trying them together. In one of these cases, in which the execution in favor of Ballew and against L. D. Armstrong had been levied upon a mule and a yoke of oxen, the property was found subject, and, upon the claimant's motion for a new trial being overruled, she excepted. Upon the trial, the claimant admitted that the defendant was in possession of the property at the time of the levy, and assumed the burden of showing that it was not subject. She was the sole witness in her behalf, and testified that the property belonged to her; that her husband, the de fendant, had no interest in it; that she had owned the mule four or five years, and the oxen for two years; that the oxen were purchased with her money; that she owned a horse, which was traded (for her) by her husband for the mule levied on; that she had never returned the property for taxation, but left that for her husband to look after, and supposed he had done so. She further testified as follows: "When the sheriff made the levy, I did [not] tell him that Mr. Armstrong had gone to the station [Oostanaula], and to go there and see him, and maybe he would stop it, as I did not know anything about the property being mine at the time, but I did mention it to Mr. Everett, who was there, and he said that was a matter to come up later." The sheriff, who was introduced as a witness by the plaintiff, testified as follows: "I went to make a levy on the property, and went to the house and told Mrs. Armstrong my business, and I left the property. She said she knew nothing about it, and for me to go down to the station [Oostanaula] and see Mr. Armstrong, who might arrange it in some way. She did not claim the property in her conversation with me; she simply told me to go and see her husband. I went and saw Mr. Armstrong, and told him my business. He told me he was on his way to Rome, and that when he returned he would see the plaintiff about the matter. I afterwards went back after the property, and the mules and oxen were gone. Don't know where they were. I afterwards took bond for the property." The claimant's husband was present at the trial, and assisted her counsel in striking the jury, but was not introduced as a witness.

1. One of the grounds of the motion for a new trial was that the court erred in charging the jury that they could find part of the property subject and part not subject, the assignment of error being that, under the evidence, all of the property was subject, or all of it not subject. As the jury found all the property involved in this case subject, there is no merit in this ground of the motion; for, even if, under the facts in evidence, this charge was erroneous, the claimant was not hurt by it. Counsel for the plaintiff in error contend that the execution was also levied upon certain cows and calves, to which Mrs. Armstrong interposed another and separate claim, and that a verdict in the case in which the cows and calves were claimed was rendered, finding them not subject; and that as, upon the trial, the issues in the two claim cases were by consent tried together, and the evidence in both cases was the same, and the jury found the property in one case subject and the property in the other case not subject, they were probably influenced by this charge to find a compromise verdict. As there was no order of the court consolidating the...