Cade v. Hatcher
| Citation | 72 Ga. 359 |
| Parties | CADE, trustee, v. HATCHER et al. |
| Decision Date | 11 March 1884 |
| Court | Supreme Court of Georgia |
February Term, 1884.
[Blandford Justice being disqualified, did not preside in this case.]
1. Leading questions are generally allowed only in cross-examinations, but the court may exercise a discretion in granting that right to the party calling the witness, and in refusing it to the opposite party, when, from the conduct of the witness, justice requires it; and this discretion will not be controlled, except in an extreme case, although the witness called may be one of the opposite parties to the case.
( a. ) While, in this case, the court in terms refused the privilege of asking leading questions of the witness, yet it appeared that many such questions were, in fact, asked and answered without objection.
( b. ) Leading questions may be propounded in a bill for discovery.
( c. ) Where discovery is sought and had by bill in equity, if the complainant afterwards places the defendant on the stand as a witness, semble, that he does so on the same terms and subject to the same conditions as in the case of indifferent parties.
( d. ) The answer of one defendant is evidence for another only when it states facts against his own interest and in favor of that of his co-defendant. Generally, it is not evidence against his co-defendant.
2. Where the defendant to a bill introduces no testimony, he has the right to open and conclude the argument.
( a. ) On the trial of a bill praying discovery, the defendants were not compelled to offer their answer in evidence in order to rely upon it. When discovery was had according to the prayer, defendant became complainant's witness.
( b. ) The fact that counsel for the defendants announced that they considered the answer in evidence amounted only to a statement that they would rely upon such answer, and did not take away the right to open and conclude.
3. The gravamen of a bill being that the estate of a decedent had been divided, with a view to dissipate and conceal the widow's interest by distributing it among her children, and thereby to defeat the collection of complainant's claim against her, when it appeared that the widow had received, as part of her share, an interest in a debt on one of the distributees, or a debt on a firm of which he was a member, no recovery could be had in favor of the complainant against him on account of such indebtedness without pleadings for that purpose, and without giving him an opportunity to defend such a claim; and such matter does not appear to have been pertinent to the issue.
Practice in Superior Court. Equity. Witness. Discovery. Pleadings. Before Judge WILLIS. Muscogee Superior Court. November Adjourned Term, 1882.
Cade trustee, filed his bill against B. T. Hatcher, S. B. Hatcher, Susan A. McMichael, formerly Hatcher, Paytona Hunt, formerly Hatcher, and Marshall J. Hatcher, alleging, in brief, as follows: Samuel J. Hatcher died in 1861, leaving a will, by which he devised the whole of his estate to the defendants and his wife, Mrs. Elizabeth Hatcher, and appointed the latter as his executrix. In 1871, complainant obtained a judgment against Mrs. Elizabeth Hatcher for $1,438.73, besides interest. This judgment was against Mrs Elizabeth Hatcher, Seaborn McMichael and James McMichael; but the latter two were insolvent, became bankrupts, and were discharged. At the time of the death of S. J. Hatcher, he left a large estate, and after the losses caused by the war, the share of each distributee was about $10,000.00. Defendants combined with Mrs. Hatcher to hinder, delay and defraud complainant, and to defeat the collection of his debt, and for that purpose they had a pretended division of the estate. But though Mrs. Hatcher was entitled to one-sixth interest, they only divided the estate into five shares, and each of the defendants took a share, with some secret understanding that they were to support Mrs. Hatcher during her life. Subsequently, Mrs. Hatcher died intestate, leaving no property. There has been no administration, but save for the wrongful practices of defendants, she would have left an estate of from $15,000.00 to $20,000.00. Defendants took possession of all the property left by her husband after the debt to complainant had been incurred. Complainant caused an execution to issue on his judgment, and it was levied on certain property which had belonged to S. J. Hatcher at the time of his death, but a claim was interposed by S. B. Hatcher and Mrs. Hunt, which was finally tried at the April term of court, 1881, when complainant learned from the testimony, then given, the facts on which this bill is predicated. The prayer was for discovery; that the defendants be required to contribute to the payment of complainant's debt, and for subpœ na and general relief.
S. B Hatcher, B. T. Hatcher and Mrs. McMichael pleaded that garnishments had been served upon them to answer what they owed Mrs. Hatcher; that they had answered nothing; that this answer had been traversed, and on the trial, the garnishments were dismissed by complainant; and defendants insist that this judgment bars the present bill.
The defendants also pleaded the statute of limitations, alleging that the estate of S. J. Hatcher was divided in 1868, and since that time, each distributee has been in possession of his or her distributive share; that at the time of the division, complainant's note was not due, and its existence was unknown to defendants; nor was there any suit or judgment, and judgment was not obtained until April, 1871; that the note was given by McMichael & Company, composed of S.W. and James M. McMichael and Robert Jones, and was signed by Mrs. Hatcher as security; that pending, suit on the note, Jones died, and complainant dismissed the case as to him, though he left an estate fully able to pay the debt, and a verdict was taken against the McMichaels and Mrs. Hatcher; that the McMichaels were solvent at that time, and did not become insolvent until 1875, but complainant nevertheless caused the execution based on the suit to be levied on this property, to which S. B. Hatcher and Mrs. Hunt interposed a claim; that complainant dismissed his levy, and again levied in 1872, and another claim was interposed; that this claim was tried in 1875, 1878 and 1881, and on each trial the evidence showed the entire division of the estate and the share received by each distributee, and complainant knew all of these facts, and is now barred by his own laches in filing this bill.
The answer of defendants denied all fraud, collusion or effort to defeat complainant's debt, and alleged that a fair and full division of the estate of S. J. Hatcher had been made; that Mrs. Hatcher had received a one-sixth interest, which she took in the shape of two claims, one on McMichael & Company for $2,500.00, which had previously been loaned to them, and which she considered good and solvent paper, but which subsequently became insolvent; the other, an interest in claim on the firm of Redd & Hatcher, of which M. J. Hatcher was a partner; that Mrs. Hatcher, as executrix, had loaned to Redd & Hatcher a considerable sum of money, amounting to about $17,000.00, which was considered a good and solvent claim; that M. J. Hatcher's share in the estate was allowed to him out of this claim, and the balance was taken as part of her share by Mrs. Hatcher; that the remainder of her share was paid to her in money, but from business losses she failed to collect this debt, and from this and her own personal expenses, etc., her share in the estate was lost and absorbed. Defendants deny any sort of agreement to support Mrs. Hatcher for life, but assert that what they did was only through filial regard for her. The remainder of the answer need not be set out; nor is it necessary to detail the evidence.
The jury found that the division was in good faith, and that Mrs Hatcher received as her share $2,500.00 in the shape of a note on McMichael & Company, one note on William Redd, Jr., and M. J. Hatcher, and some money; that Mrs. Hatcher left nothing visible at her death, and defendants received nothing from her estate, and that...
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