Fender v. Phillips

• Decision Date: 13 October 1908
• Citation: 131 Ga. 440,62 S.E. 527
• Court: Georgia Supreme Court
• Parties: FENDER. v. RAMSEY & PHILLIPS.

62 S.E. 527

131 Ga. 440

FENDER.

v.RAMSEY & PHILLIPS.

Supreme Court of Georgia.

Oct. 13, 1908.

1. Evidence — Admissibility — Evidence at Formes Trial.

A rule of law under which the testimony of a witness, since deceased or disqualified or inaccessible for any cause, given under oath on a former trial upon substantially the same issue between substantially the same parties, may be proved by any one who heard it and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies, does not authorize the admission in evidence on the final trial of the case of an ex parte affidavit made by a witness, since deceased, for use on the hearing of an application for interlocutory injunction in the same case.

2. Malicious Prosecution — Damages — Cross-Action.

Where a plaintiff brought an action against a defendant to enjoin interference with timber and to recover damages, the defendant could not in the same case, by way of cross-action, recover damages against the plaintiff on the ground that the suit was instituted and prosecuted withoutprobable cause, and that damages had resulted to him by reason thereof; and a charge by the court allowing such a recovery was erroneous.

(Syllabus by the Court.)

Error from Superior Court, Tift County; R. G. Mitchell, Judge.

Action by W. L. Pender against Ramsey & Phillips. Judgment for defendants, and plaintiff brings error. Reversed.

F. S. Harrell and Crawford & Wilcox, for plaintiff in error.

Hendricks & Christian, for defendants in error.

ATKINSON, J. 1. On final trial an affidavit was offered in evidence containing material statements of fact bearing upon the issue. It was admitted that the affidavit was taken for use on the hearing of an application for interlocutory injunction in the same case, and that the affiant had since died. The affidavit was admitted in evidence over the objection of the plaintiff. This ruling was erroneous. The reason of the rule admitting such evidence is quite clearly stated in 1 Greenleaf on Evidence (16th Ed.) §§ 163, 163a. Among other things it is said: "The chief reasons for the exclusion of hearsay evidence are the want of the sanction of an oath, and of any opportunity to cross-examine the witness. But where the testimony was given under oath, in a judicial proceeding in which the adverse litigant was a party, and where he had the power to cross-examine and was legally called upon to so do, the great and ordinary test of truth being no longer wanting, the testimony so given is admitted, after the decease of the witness, in any subsequent suit between the same parties. It is also received, if the witness, though not dead, is put of the jurisdiction, or cannot be found after diligent search, or is insane, or sick, and unable to testify, or has been summoned, but appears to have been kept away by the adverse party." The rule as stated in Civ. Code 1805, § 5186, is a codification of the general rule of law, and not a change arising from legislative enactment. The language of that section is inapplicable to an ex parte affidavit, made for use on an interlocutory hearing and without the right of cross-examination. It speaks of testimony "given under oath on a former trial." It refers to proving the substance of the entire testimony on the particular matter by one who heard it, and altogether it is apparently not applicable to such an affidavit. Interrogatories stand on a different footing from an ex parte affidavit. There the right of cross-examination exists, and the adverse party can propound...