Arrington v. Awbrey

• Decision Date: 11 April 1940
• Docket Number: 13245
• Citation: 8 S.E.2d 648,190 Ga. 193
• Parties: ARRINGTON v. AWBREY.
• Court: Georgia Supreme Court

8 S.E.2d 648

190 Ga. 193

ARRINGTON v. AWBREY.

13245

Supreme Court of Georgia

April 11, 1940

Syllabus by the Court.

1. Grounds of a motion for a new trial complaining of the admission or rejection of evidence should show, in order to be complete, the name of the witness whose testimony was admitted or rejected; and in the absence of such showing, no question is presented to this court for review.

2. On the trial of an issue made by the levy of a fi. fa. on property to which claim is made by the wife of the defendant in fi. fa., it is not error to admit in evidence notes signed by the defendant before the execution of the deed under which the wife claims. Nor was it reversible error in this case to admit, over the objection that it was hearsay, a copy of notice of suit given by the attorney for the plaintiff in fi fa. to the husband, a month and a half after the date of the deed under which the wife claimed.

3. In the present case it was not error for the judge to charge the jury that the claimant denied knowledge of any fraudulent intention on the part of her husband in conveying to her the property claimed for a valuable consideration, on the ground that there was no evidence to authorize the charge, when the wife had testified that she had no knowledge of such intention, if it existed, and that she paid $500 for the property involved.

4. The evidence supported the verdict, and the general grounds of the motion for a new trial are without merit.

On March 22, 1937, execution was issued on a judgment in favor of J. J. Awbrey against R. L. Arrington. On November 7, 1938 this execution was levied on the south half of the north half of lot of land No. 193 in the 12th district of Heard County embracing fifty acres more or less, the entry of levy reciting that the land was levied on as the property of the defendant in fi. fa., and was in his possession. On November 22, 1938, Lula Arrington filed her claim to the land. The trial resulted in a verdict declaring the property subject to the levy. The claimant excepted to the overruling of her motion for a new trial.

The claimant testified on the trial, that she is the wife of the defendant in fi. fa., and that the land levied upon was hers by virtue of a deed which she introduced in evidence, dated July 1, 1936, executed by her husband, and conveying the land to her. (The record in this court does not contain a copy of this deed. Only a memorandum describing the land, giving the names of the grantee and the grantor, and the date of the deed without showing what consideration was recited therein, is in the record.) The claimant testified, that she give $500 for the land by crediting her husband, the grantor, on an account of over $800 that he owed to her; that this account was made up of a series of loans starting in 1918 and running through 1934, being the proceeds from a bale of cotton which she claimed to have owned and sold each year, together with stated amounts which she obtained by the sale of certain cows, all aggregating more than $800; that she had a cotton patch for each of the years on land owned by her husband; that she had nothing to do with procuring the seed, paying for the fertilizer used in making the cotton, paying for ginning or selling the cotton; that her husband attended to these matters and paid for them; and that the cotton was sold each year by her husband and in his name. She introduced in evidence tickets for the sale of cotton by her husband for the years 1918, 1921, 1922, 1924, 1931, 1932, 1934, and 1935, and one undated ticket for the sale of three bales of cotton, on each of which tickets a mark was drawn around one bale, which she testified was her bale. Also, her tax returns for 1937, 1938, and 1939; and her application for homestead tax exemption, which she testified embraced the land involved in the claim. She testified, that she had a book at home containing a record of her loans to her husband of the cotton and cow money; that she was testifying on the trial from a memorandum made by her about 1936 from that book, and from which she was refreshing her memory; that on a former trial of this case counsel for plaintiff asked her about the little book, but she did not think to bring the book for use on the present trial; that on July 1, 1936, she gave her husband credit on the account he owed her for $300 for some mules, and $500 for the land, but she did not mark the accounts paid and surrender them to her husband when the land and mules were conveyed to her; that she knew her husband bought supplies from the plaintiff in 1918, 1920, 1921, and 1922, and that he was trading on credit some of the years, but that she did not know that he gave a note in 1929 or in 1935. In reply to the question whether 'in 1936 Mr. Gearreld came up there to see her husband about these claims,' she answered: 'I don't know. He came one time when I was out there in the cotton patch.' She knew nothing about her husband receiving notice for attorney's fees. She never paid anything for ginning, bagging, ties, and guano, and she had never given her husband credit for them; it had never been mentioned; her husband owed the plaintiff, owed doctor bills, and owed her. She did not remember telling anybody in particular about having a cotton patch. The tax commissioner testified that the claimant signed the tax returns for 1937, 1938, and 1939, and the application for homestead exemption from taxation.

The plaintiff testified, that R. L. Arrington was in possession of the land levied on when credit represented by the execution in this case was extended; that he had no notice that claimant had or claimed an interest in the crop, and that he had never heard of her having a cotton patch, but he did not know whether or not she had a cotton patch or a bale of cotton every year. Jim Burgess testified that he had known the claimant all her life, and had lived within a quarter of a mile from her for the past ten years, and had talked with her frequently, and that neither she nor her husband had ever mentioned about her having a cotton patch; but that he did not know whether or not she had a cotton patch or bale of cotton every year.

Other neighbors gave substantially the same testimony as did Jim Burgess. Frank Gearreld, an attorney, testified that the plaintiff turned over to him for collection three notes which he held against R. L. Arrington, one for $255.97 dated March 26, 1929, due October 1, 1929, one for $255.97 dated March 26, 1929, due October 1, 1930, and one for $800, dated March 21, 1930, due October 1, 1930, the latter being secured by a crop mortgage, a mare, and an undivided interest in the estate of mortgagor's father and mother; that on August 15, 1936, he wrote to the defendant requesting payment of the notes, and giving notice of attorney's fees, as shown by a copy of the letter which was introduced; and that before writing the letter he went to the home of defendant, seeking to collect these notes.

Wyatt & Morgan, of La Grange, for plaintiff in error.

J. L. Smith, of Carrollton, and Frank L. Gearreld, of Franklin, for defendant in error.

DUCKWORTH Justice.

1. The first four grounds of the amendment to the motion for a new trial complain of the court's ruling upon the admissibility of evidence, but do not state the name of the witness whose testimony was admitted. This court has ruled more than once that grounds of a motion for a new trial complaining of the admission or rejection of evidence should show, in order to be complete, the name of the witness whose testimony was admitted or rejected. Sims v. Sims, 131 Ga. 262, 62 S.E. 192; Hunter v. State, 148 Ga. 566, 97 S.E. 523; Plemmons v. Sharp, 156 Ga. 571(3), 119 S.E. 532; Williams v. State, 186 Ga. 251(4), 197 S.E. 838. These grounds, being incomplete, they can not be considered by this court.

2. Grounds 5 and 6 assign error on the admission in evidence of the three notes signed by the defendant in fi. fa., and payable to the plaintiff in 1929 and 1930, and the notice of attorney's fees, dated August 15, 1936, signed by Frank Gearreld, the attorney for the plaintiff in fi. fa. addressed to the defendant in fi. fa. The ground of objection was that the documents were hearsay. On the material issue of fraud these notes were circumstances indicating a motive or reason...