Bugg v. Chevron Chemical Co., 24865.

• Decision Date: 21 November 1968
• Docket Number: 24865.
• Citation: 165 S.E.2d 135,224 Ga. 809
• Parties: BUGG et al. v. CHEVRON CHEMICAL COMPANY.
• Court: Georgia Supreme Court

224 Ga. 809

165 S.E.2d 135

BUGG et al. v. CHEVRON CHEMICAL COMPANY.

24865.

Supreme Court of Georgia.

Argued October 14, 1968.

Decided November 21, 1968.

Rehearing Denied December 5, 1968.

Cain, Smith & Porter, S.P. Cain, for appellants.

Carlisle & Chason, Willard H. Chason, Ralph E. Carlisle, Alexander, Vann & Lilly, Tom Vann, for appellee.

GRICE, Justice.

This appeal involves a suit by a creditor seeking to cancel a deed from a husband to his wife. The jury's verdict was in favor of the creditor. The husband's motions for judgment notwithstanding the verdict and for new trial were denied, and the appeal is from such denials.

The creditor, Chevron Chemical Company, filed the action against F. D. Bugg and his wife, Lidie S. Bugg, in the Superior Court of Grady County. The complaint alleged that the deed, executed about a year before the creditor obtained judgment, was made with intent to hinder, delay and defraud creditors and that such intent was known to the wife; that the deed was voluntary, without consideration; and that the husband was insolvent when he made the deed, and was left with no property with which to pay his debts.

The complaint bears the name of a partnership, by Williard H. Chason, as the creditor's attorneys and contains Mr. Chason's affidavit that "The contents of the above and foregoing petition are to the best of my knowledge true and correct." A copy of the deed in question, showing that it was witnessed by Mr. Chason, is attached to the complaint.

The husband and wife filed a motion to dismiss this complaint, alleging in substance the following: that on the day this deed was executed the husband consulted Mr. Chason with the view of making a deed to his wife; that in their conference the husband disclosed the facts as to financial affairs between him and his wife, and said attorney advised him that he could make a legal deed to his wife; that he employed said attorney to draft the deed; that said attorney drafted it; that it was signed by the husband and witnessed by said attorney; that the petition in this case is filed by the same attorney and alleges that said transaction was illegal and void as to creditors because it was without consideration and was for the purpose of defrauding creditors and known to the parties at the time, and these facts are sworn to as true by said attorney; that said attorney is an incompetent witness to any facts going to show that the deed is illegal for the reasons assigned in the petition and therefore the petition filed by him and his firm and sworn to by him is improper and prejudicial to the husband and wife, is illegal and should be dismissed; and that if the case is tried the petition, containing as an exhibit the deed in question witnessed officially by the same person who files the petition and swears the facts alleged are true, would be prejudicial even though no evidence was offered by the creditor as to its attorney substantiating the facts because the sworn petition would be before the jury and considered by them. The motion prayed that it be sustained and the case dismissed.

This motion to dismiss was the subject matter of a conference held before trial. As a part of the record the judge certified the following: that it was agreed between counsel that the affidavit above referred to would be deleted from the petition; that counsel for the husband and wife agreed to abandon the motion to strike and to try the case on an unverified petition; and that the motion to strike was abandoned and counsel for the husband and wife stated to the court that he was abandoning the motion and to try the case on an unverified petition.

The transcript of testimony shows that at the beginning of the evidence Mr. Chason, as counsel for the creditor, called the husband for the purpose of cross examination; that immediately counsel for the husband and wife stated that he desired to instruct the husband not to give any of the testimony which passed between him and Mr. Chason when he prepared the deed; that he could state that he consulted Mr. Chason and that Mr. Chason prepared it, but not to tell the contents of the conversation at the time the deed was made. Insofar as the record shows Mr. Chason remained silent as to these instructions.

Mr. Chason conducted the creditor's case throughout the trial.

The undisputed testimony was that he drew the deed in question. Upon his cross examination of the husband as to who recorded the deed, the husband stated, "I think, as well as I remember, Thomas County Federal recorded it. You made it. . . . You handled it."

The affidavit above referred to, was not deleted from the creditor's complaint, and was with it when it went out with the jury in its deliberation. Insofar as the record shows, neither counsel nor the trial judge said or did anything as to the deletion of it during the trial.

The issue which we regard as controlling is made by the following enumerations of error: "7. The court erred in permitting the case to continue after the attorney for the creditor had called as his first witness the defendant husband and proven by him on cross examination that counsel for the creditor made the deed sought to be cancelled and handled the entire transaction for the defendant husband . . . the court should have investigated into the same and withdrawn the case from the jury and dismissed the petition." "8. The court erred in sending out with the jury the original petition of plaintiff with the affidavit of counsel thereon, the same not having been deleted from the petition . . . It was agreed at a pre-trial conference before the trial began that the motion which the defendants had previously filed to strike the suit on the ground of counsel's disqualification would be withdrawn and the affidavit to the petition alleging that the facts stated in the petition were true and correct and signed by counsel would be deleted from the petition. Such affidavit was not deleted in accordance with the agreement and the evidence in the case showing that counsel for petitioner had made the deed sought to be cancelled and handled the entire transaction for the defendant husband . . . and said affidavit and petition were prejudicial to the defendants and deprived them of a fair trial." There was also an enumeration complaining of the overruling of the motion for new trial. One ground of that motion was based on the failure to delete the affidavit from the complaint before it went out with the jury.

While the motion of the husband and wife did not pray that the attorney be disqualified, the thrust of its allegations is that on account of his prior...