Christian v. Westbrook

• Decision Date: 13 October 1885
• Citation: 75 Ga. 852
• Parties: CHRISTIAN et al. v. WESTBROOK et al.
• Court: Georgia Supreme Court

75 Ga. 852

CHRISTIAN et al. v. WESTBROOK et al.

Supreme Court of Georgia.

October 13, 1885

October Term, 1885.

1. Where there is any evidence to sustain the verdict, it is in the discretion of the judge to grant or refuse a new trial and if he does not abuse his discretion, we are not at liberty to interfere with his judgment. This is the rule where a first verdict has been set aside or sustained, but where a second jury, upon the grant of a new trial, has concurred with the former jury in their finding, and the presiding judge has refused to disturb it and grant another new trial, this court would not interfere with the exercise of his discretion, although he may think the evidence introduced to establish the main ground relied upon for a recovery " rather weak."

2. The main contention in this case was as to whether the complainants were barred from a recovery by letters dismissory granted to the administrators, or whether said letters were obtained by fraud, and therefore were void. The evidence showed considerable irregularity on the part of the administrators, and was such as at least to cast suspicion upon the fairness of the proceedings; and there was enough on which to predicate the verdict found by the jury.

3. The fact that a distributee, who was a minor at the time when the administrators obtained letters of dismission, had a legal guardian during his minority, did not bar his right to commence suit against them at any time within five years after his arrival at majority.

New Trial. Administrators and Executors. Fraud. Statute of Limitations. Guardian and Ward. Before Judge BROWN. Cherokee Superior Court. February Term, 1885.

This was a bill filed by the sons of a decedent against the administrators on his estate for an accounting. It was alleged that they bad obtained a discharge by fraud, which the complainants had discovered only some two months before suing. The discharge was obtained in 1871; the bill was filed in 1877; one of the complainants became of age in December 1871, and the other about two years later. The former had a guardian; the latter had none.

The principal points in contest rested on the discharge of the administrators and the statute of limitations. The case was referred to an auditor, and exceptions to his report were filed. The jury found against the exceptions. A motion for a new trial was made and overruled, and the defendants excepted.

R. P LESTER; GEO. N. LESTER, for plaintiffs in error.

W. A TEASLEY; C. D. PHILLIPS, for defendants.

HALL Justice.

Both parties excepted to the auditor's report in this case the issues made by these exceptions have been passed upon by two juries at different terms of the court; each jury returned the same verdict, and both verdicts found against the exceptions and in favor of the auditor's report. Upon a motion made by the defendants, the first verdict was set aside, and a new trial was ordered. The defendants made a motion to set aside the verdict rendered on the last trial, and asked that another new trial be awarded them, which was refused by the judge,...