Estill v. Citizens' & Southern Bank

• Citation: 113 S.E. 552,153 Ga. 618
• Decision Date: 15 June 1922
• Docket Number: 2911.
• Parties: ESTILL v. CITIZENS' & SOUTHERN BANK ET AL.
• Court: Supreme Court of Georgia

113 S.E. 552

153 Ga. 618

ESTILL v. CITIZENS' & SOUTHERN BANK ET AL.

No. 2911.

Supreme Court of Georgia

June 15, 1922

Syllabus by the Court.

The trial court did not err in excluding the evidence offered by the guardian and set out in the fourth to twenty-fourth grounds of the motion for new trial.

The range in time of impeaching testimony rests in the sound discretion of the trial judge.

Depositions of a witness, properly taken by the defendants, are not rendered inadmissible because, subsequently to their taking the witness had appeared in court, been sworn as a witness for the defendants, being thus subjected to a thorough direct and cross examination, and her testimony had been made a part of the record.

In order to impeach a witness by contradictory statements, it is not necessary that he should absolutely deny the declarations made by him; but this may be done when the witness says he does not recollect such statements, if the same be relevant to the issue on trial.

It is well settled that a witness cannot be sustained by proof of consistent statements, although the latter may have been made under oath on a previous trial of the same case.

If at the time of the trial a witness resided beyond the limits of the state, he was inaccessible; and his testimony on the former trial of the case should have been admitted by the court.

(a) Before such testimony is admissible the party offering it must show that the witness is inaccessible.

(b) The question of the inaccessibility of the witness was one for the determination of the trial court in the exercise of a sound discretion; and we cannot say that the trial judge abused his discretion in refusing to admit the testimony of the witness on the former trial under the proof.

Before contradictory statements, previously made, can be proved against a witness for the purpose of impeaching him (unless they are written statements made under oath in connection with some judicial proceedings), his mind should be called with as much certainty as possible to the time, place, person and circumstances attending the former statement; and, if in writing, the same should be shown to him, or read in his hearing if in existence.

(a) This rule is just to the witness and the party calling him who has rights dependent upon his testimony.

(b) Depositions of a witness previously taken out in a cause can be used to impeach a witness without first laying the foundation.

(c) A witness whose testimony, taken by depositions, is before the jury on a second trial, cannot be impeached by his testimony on a former trial, embraced in a brief of such evidence agreed to by counsel and approved by the court, unless the proper foundation has been laid by calling his attention thereto and affording him an opportunity to explain.

A female witness, whose testimony under our statute can be taken by interrogatories, and who cannot be compelled to attend court in person under subp na, is not such an inaccessible witness, in the sense of our law, as would permit her testimony on a former trial to be used; and the trial court did not err in rejecting proof of the former testimony of such witness when offered by the movant.

The trial court did not err in refusing to reopen the case for the introduction by the guardian of additional testimony; it not being made to appear that it had been inadvertently overlooked by counsel.

The court did not err in charging the jury that "he [meaning Marion W. Estill] cannot, by claiming her as his child, alter the status. The will of John Holbrook Estill provides that Marion W. Estill shall have the share of his estate in controversy, with remainder to his children. If he had no children, it was to go to other legatees under the will of the testator. Marion W. Estill could, by no act of his own change this will. He cannot, by claiming that a child was his, change the will. To receive the property the child must have been his and by him begotten, and no act or claim of Marion W. Estill as to a child not his and not by him begotten can change the status of such child."

The court did not err in charging the jury as follows: "Letters of Marion W. Estill containing declarations, and also oral declarations of his relating to the paternity of the child, Marian Virginia Estill, have been admitted in evidence. These declarations were admitted as evidence only and to be given only such credit as you see fit to give them in the light of all of the evidence in the case, and if you find from the evidence that they were made for the purpose of being used as evidence and not as spontaneous expressions, then you should disregard them and give them no credit at all."

Additional Syllabus by Editorial Staff.

The admission of testimony that, when an impeaching witness knew another witness 10 or 12 years before the trial, her general reputation was bad, held not an abuse of discretion.

What a telephone operator told counsel he had been told by an absent witness's mother concerning the witness's whereabouts was hearsay in the first degree, and what counsel informed the court the operator had told him on a motion to reopen the case and admit the witness's testimony on a former trial was hearsay in the second degree, under Civ. Code 1910, § 5763.

While it is the duty of the court to admit material evidence at any time before the argument is closed, if not within the knowledge of the party offering it before, the court is under no duty to reopen the case for the admission of vital evidence when the foundation for its introduction rests on hearsay evidence.

Testimony of a witness that she heard an absent witness testify on a former trial that he had written certain letters and the letters themselves held properly excluded as hearsay.

That an absent witness was physically unable to attend trial or have her deposition taken did not excuse the party desiring her evidence for not using due diligence in securing or attempting to secure her testimony, or, if she could not attend, being prepared to make a proper showing for a continuance, or for the introduction of her testimony on a former trial.

Testimony of a witness at a former trial does not constitute "written statements made under oath in connection with some judicial proceedings" within the meaning of Civ. Code 1910, § 5881, authorizing the impeachment of witnesses by such statements without foundation being laid therefor.

Error from Superior Court, Chatham County; P. W. Meldrim, Judge.

Suit by E. P. Estill, guardian, against the Citizens' & Southern Bank, trustee, which interpleaded other parties. Judgment against plaintiff, and she brings error. Affirmed.

Oliver & Oliver, of Savannah, for plaintiff in error.

R. L. Colding, Lawrence & Abrahams, Adams & Adams, and T. P. Ravenel, all of Savannah, for defendants in error.

HINES J.

This case has been before this court on two former occasions, Estill v. Estill, 147 Ga. 358, 94 S.E. 304, and Estill, Guardian, et al. v. Estill et al., 149 Ga. 384, 100 S.E. 365. The nature of this controversy is fully set forth in the above cases. On the two former trials the juries found that Marian Virginia Estill was the child of Marion W. and Elizabeth Pate Estill. On the last trial the jury found that she was not the child of these parents. Her guardian moved for a new trial, which motion was overruled, and error is assigned upon this judgment. It is unnecessary to set out the evidence, as it was conflicting, and would have sustained a verdict either way.

1. The grounds of the motion for new trial, from the fourth to the twenty-fourth, inclusive, deal with rulings of the court in excluding evidence offered by the guardian. These grounds are without merit.

2. In the twenty-fifth ground of the motion it is alleged that the court erred in permitting Wm. M. Kidwell, a witness for the defendants, to testify that he knew Elizabeth Pate Estill 10 or 12 years ago, that he did not know her general reputation now, as he had only seen her once in 10 or 12 years, and that her general reputation at the time he knew her was bad. The objection to the question which elicited this testimony was that it had "no bearing on the trial of this case," and that it was "irrelevant." This evidence was offered for the purpose of impeachment. "The range in time is subject to a sound discretion to be exercised by the trial judge." Watkins v. State, 82 Ga. 231, 8 S.E. 875, 14 Am.St.Rep. 155. The trial judge did not abuse his discretion in this matter so far as range of time was concerned, or otherwise in making this ruling.

After this witness had testified as above he was asked if he would believe her on oath at that time; and he replied that he did not know, but he did not think he "would that class of women." No objection was urged to the form of this question, nor to the answer thereto; and so we are not called upon to pass upon the propriety of the question or the answer.

3. In the twenty-sixth ground of the motion complaint is made that the court erred, over objection of counsel for the guardian, in permitting the depositions of Madge Long, a witness for the defendants, taken before a commissioner, to be read to the jury; the ground of objection being that, since the depositions of this witness had been taken, she had appeared in court, been sworn as a witness for the defendants, when she had been subjected to a thorough direct and cross examination, and her testimony had been made a part of the record. The witness not being in court, the judge overruled this motion, and we do not think the court erred in this ruling.

4. In the twenty-seventh ground of the amended motion for new trial, the guardian complains of the admission by the court of the testimony given by Ruby Anne Pate on the first...