Foster v. Kelly, 39928
| Decision Date | 10 April 1963 |
| Docket Number | No. 39928,No. 2,39928,2 |
| Citation | 107 Ga.App. 801,131 S.E.2d 587 |
| Parties | Edward FOSTER v. Emma L. KELLY. . Division |
| Court | Georgia Court of Appeals |
Albert B. Wallace, Jonesboro, for plaintiff in error.
Melvin Pazol, Parker, Howard & Parker, Atlanta, for defendant in error. Syllabus Opinion by the Court
1. The court will take judicial cognizance of who are the incumbents in State and county offices required by law to be commissioned by the Governor, and the signature of one who occupies such an office certifying as to the correctness of the copy of a document on file in his office is sufficient authentication of such copy so as to make it admissible in evidence. Vickery v. Benson, 26 Ga. 582(1); Harden v. Webster, Parmalee & Co., 29 Ga. 427, 428(1); Ponder v. Shumans, 80 Ga. 505, 507(2), 5 S.E. 502; McMillan v. Savannagh Guano Co., 133 Ga. 760(3), 66 S.E. 943. The tax commissioners of the various counties are among those whose commissions are issued under executive seal. Code § 89-202.
2. Under the foregoing authorities, a copy of an application for an automobile license tag purportedly signed by the defendant as owner, which copy was certified over the signature of the tax commissioner of the county of the defendant's residence as being a true and correct one, and a copy of a tax return purportedly filed by the defendant and showing thereon as a part of the property returned by him an automobile testified to by a witness for the defendant as being the one in question, which documents carried the statements, , were admissible in evidence over the objection that these documents were not properly authenticated. The other objection to this evidence, that it was irrelevant and immaterial and had no probative value as to the ownership of the automobile in question, was not a sufficient objection to authorize its exclusion. Holland v. Ryals, 41 Ga.App. 280(2), 152 S.E. 852; Cowart v. Gunn, 90 Ga.App. 680, 685(5), 83 S.E.2d 832. The first special ground of the motion does not show error.
3. The second special ground of the motion complains of a portion of the charge on the ground that the court used therein the word 'by' for the word 'for.' The charge transmitted to this court as a part of the record shows that the word 'for' was used in the portion of the charge thus complained of. In cases of conflict between the facts recited in the motion for a new trial and the record, the record prevails. James v. Hudson, 170 Ga. 321, 322(1), 152 S.E. 829. Assuming that the substitution of words would have been error, as contended in this ground, the record fails to support the factual basis for the claimed error and the assignment is therefore without merit.
4. (a) It is error for the trial judge in his charge to express or intimate his opinion as to what has or has not been proved and a violation of this rule makes the grant of a new trial mandatory. Code § 81-1104. Where one of the principal issues related to whether the automobile which struck the plaintiff was owned by the defendant and furnished by him as a family purpose vehicle to the driver, who was his minor son, living in his household, it was error for the court to charge, as complained of in special ground 3 of the motion, so as to assume therein that the vehicle in question was the defendant's. This error was not cured by the fact that the judge elsewhere instructed the jury that he...
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Cowan v. State, 48718
...274, 277, 61 S.E.2d 113, 115, citing 5 Wigmore on Evidence (3rd ed.), 520, § 1633(8). For this reason, the holding in Foster v. Kelly, 107 Ga.App. 801(1), 131 S.E.2d 587, does not mean that the certificate must be by a public officer personally, rather than by a deputy officer who certifies......
- Wright v. State, 40136