Cutis v. Geiger

• Decision Date: 14 April 1933
• Docket Number: No. 9187.,9187.
• Citation: 176 Ga. 864,169 S.E. 127
• Parties: CUTIS. v. GEIGER et al.
• Court: Georgia Supreme Court

176 Ga. 864

169 S.E. 127

CUTIS.

v.GEIGER et al.

No. 9187.

Supreme Court of Georgia.

April 14, 1933.

Syllabus by Editorial Staff.

Error from Superior Court, De Kalb County; John B. Hutcheson, Judge.

Suit between L. H. Geiger and Marcus Cutis. Judgment for last named party, first named party's motion for a new trial was overruled, and first named party brings error.

Reversed.

Mozley & Gann, of Marietta, for plaintiff in error.

Grant & Bong and Frank C. Tindall, all of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

BELL, Justice.

1. A judge of the superior court has jurisdiction to revoke or modify an order approving the grounds of a motion for a new trial, at any time while the motion is still pending before him and until the bill of exceptions is certified. Vanover v. Turner, 41 Ga. 577 (2); Ford v. Holmes, 61 Ga. 419 (5); Tate v. Griffith, 83 Ga. 153 (2), 9 S. E. 719; Keys v. Bell, 111 Ga. 795, 36 S. E. 987; Tifton, etc., Ry. Co. v. Chastain, 122 Ga. 250 (3), 50 S. E. 105; Alexander v. Barrett, 134 Ga. 676 (4), 68 S. E. 503; Pryor v. Pryor, 162 Ga. 148, 132 S. E. 803; Atlanta & Birmingham Airline Railway v. McManus, 1 Ga. App. 302, 58 S. E. 258; Fairburn & Atlanta Ry. & Electric Co. v. Hale,. 32 Ga. App. 412, 413, 123 S. E. 724. In the present case the order affecting the previous approval is not excepted to upon the ground that it was merely erroneous because the movant was not afforded an opportunity to be heard, but the sole contention is that the judge had no jurisdiction to pass the order. There is no merit in this contention.

2. ''A ground of a motion for new trial disapproved, or not substantially approved, by the trial judge will be disregarded by a court of review, as presenting nothing for consideration. However, where a ground is substantially approved, it is the duty of a court of review to consider and decide the question substantially presented." Fair v. State, 171 Ga. 112 (3), 155 S. E. 329, 330; McLean v. Mann, 148 Ga. 114, 95 S. E. 985. Upon application of this rule, all grounds of the motion for a new trial in the present case will be considered, except ground 4.

3. In a suit against the grantor and the grantee, to cancel a deed as having been made to hinder, delay, or defraud the plaintiff as a creditor, it is competent to prove acts and declarations of the grantor tending to show fraudulent intent and motive on his part, whether such acts and declarations occurred before or after the execution of the deed in question; but the effect of such evidence should be restricted to the sole purpose of showing intent or motive on the part of the grantor, and the grantee would not be affected by such proof, unless it appeared that the acts or declarations occurred in his presence. Claflin v. Ballance, 91 Ga. 411, 18 S. E. 309; Seagraves v. Couch & Jackson. 168 Ga. 38 (3), 147 S. E. 61. Under this ruling, grounds 1, 2, 3, and 9, relating to the admission of evidence over objections of the grantee, do not show error.

4. Notwithstanding there was some evidence involving the impeachment of a witness by proof of contradictory statements, followed by rebuttal evidence of good character the court did not err in omitting, without request, to charge the jury on the law relating to impeachment of witnesses, and the manner in which a witness of whom impeachment was sought may be sustained. Hunter v. State, 136 Ga. 103 (4), 70 S. E. 643. This ruling applies to ground 5.

5. "It has been frequently ruled that an exception to an entire charge will not be considered unless the whole charge be subject to such exception. McLendon v. Frost, 57 Ga. 448, 450 (12); Anderson v. Southern Ry. Co.,

107 Ga. 500, 33 S. E. 644; Newman v. Day,

108 Ga. 813, 34 S. E. 167." Powell v. State. 122 Ga. 571 (5), 50 S. E. 369. In the instant case the whole charge was not erroneous, as contended.

6. The charge complained of in ground 7 was not cause for a new trial, when considered in connection with the whole charge.

7. There was some evidence to authorize the inference that the...