Branch v. Branch

• Decision Date: 21 September 1942
• Docket Number: 14267.
• Citation: 22 S.E.2d 124,194 Ga. 575
• Parties: BRANCH v. BRANCH.
• Court: Georgia Supreme Court

22 S.E.2d 124

194 Ga. 575

BRANCH v. BRANCH.

No. 14267.

Supreme Court of Georgia

September 21, 1942

Syllabus by the Court.

One who assings error must show error by the record. Where on the trial of an intervention the judge charged the jury that the issue then being tried was not a part of the main case which had been previously referred to an auditor, and therefore that any ruling made by the auditor would not be controlling on such issue, a motion for a new trial, complaining because of the failure to charge on the issue as to whether the intervenor was a party to the main case, does not show error where none of the pleadings or orders of the main case are contained in the motion and record transmitted to this court. In the absence of a showing to the contrary, this court will assume that the judge, who on the trial of an intervention may take judicial notice of the minutes and proceedings in the main case, was authorized by such minutes to state that the issue made by the intervention was one which had not been submitted to the auditor.

S C. Branch, one of the legatees in the will of J. J. Branch deceased, filed an intervention in the case of R. E. Branch Sr., v. J. C. Branch, as executor of the will of J. J. Branch, deceased, which the bill of exceptions recites was a case in which the superior court of Oconee County had assumed jurisdiction of the estate of J. J. Branch under its equitable powers. The intervenor alleged that, notwithstanding the auditor's report in said case indicated that the intervenor had sold his entire interest in the estate to R. E. Branch, Sr., he had not sold or transferred his interest to R. E. Branch, Sr., or to any one else; that he had never acknowledged service and had never been served in the main cause; that he had never been requested to appear before any court or auditor in said case; and that he had never had his day in court. After the court had allowed the intervention, R. E. Branch, Sr., hereinafter called the defendant, filed an answer in which he denied the intervenor's allegation that he had never transferred his interest in the estate, and alleged that he held and owned a transfer of the intervenor's interest. The answer also denied the intervenor's allegation that he had not had his day in court.

On the trial of the case made by the intervention the evidence on the question whether the assignment under which the defendant claimed the interest of the intervenor was a forgery was in conflict. The defendant introduced the following acknowledgment of service in the main case, purporting to have been signed by the intervenor and others: 'Due and legal service of copy of answer and cross-bill of J. C. Branch, as executor of the will of J. J. Branch, deceased, together with copy of order of Honorable Blanton Fortson, judge S.C. W. C., directing service upon the parties therein named and making each parties to said case acknowledged. All other and further process service, and copies waived, and we and each of us hereby agree that said case may be tried at the July term of the superior court of Oconee County, Georgia, the same being the return term of court to which the original case is made returnable.' The evidence was also in conflict as to whether the intervenor's signature on this paper was genuine.

The court in its charge submitted to the jury the question relating to the authenticity of the assignment under which the defendant claimed title to the intervenor's share of the estate involved, but did not allow the jury to pass upon any question with reference to whether the intervenor had been served in the main case or had had his day in court. As to the latter matter the court made the following statement in the charge to the jury: 'On the issue of that day...