Freeman v. Coleman

• Decision Date: 15 February 1892
• Citation: 14 S.E. 551,88 Ga. 421
• Parties: FREEMAN v. COLEMAN et al.
• Court: Georgia Supreme Court

14 S.E. 551

88 Ga. 421

FREEMAN v. COLEMAN et al.

Supreme Court of Georgia

February 15, 1892

1. There being evidence tending to show that the claimant was present when a prior mortgage was executed on the same property, and that she then recognized the property as belonging to the mortgagor, it was not error to admit that mortgage in evidence for the purpose of showing that it covered the property now in controversy.

2. The only evidence of consent by a married woman to the mortgaging of the property in order to secure the debt in question being that she consented to a mortgage dated the 21st of February 1888, which was executed prior to the one now sought to be enforced, a request to charge the jury that a married woman cannot consent to mortgage her property to secure the debt of another person was complied with by charging that, if she consented to the execution of the mortgage of the 21st of February, 1888, that cannot be held to bind her as to the second mortgage; and, there being no evidence that she consented to the second mortgage, a charge on that subject would be inapplicable to the facts.

3. There being no request to instruct the jury as to the rules by which to test the credibility of witnesses, the omission of such instruction is not cause for a new trial.

4. Where, during the pendency of a claim case, an office paper connected with the case, such as the mortgage fi fa., has been lost, and the loss is discovered while the trial is in progress, the court may suspend the trial, and allow a copy to be established instanter. That the copy was called an alias makes no difference.

5. On discovery of the original fi. fa., after the trial had terminated, it is no cause for a new trial that the copy established was not in all respects an accurate copy of the original.

6. The evidence warranted the verdict.

Syllabus by the Court.

Error from superior court, Jones county; W. F. JENKINS, Judge.

Coleman Ray & Co. levied execution on certain mules under a judgment against A. H. Wyche. Gertrude Freeman interposed a claim to the mules. From a verdict and judgment for plaintiffs, and an order denying her a new trial, claimant brings error. Affirmed.

The following is the official report:

A mortgage fi. fa. in favor of Coleman, Ray & Co. against A. H. Wyche was levied upon "one black mare mule, six years old, named 'Pigeon,"' and "one black mare mule, seven years old, named 'Pet,"' which were claimed by Mrs. Freeman. Upon the trial of the claim case the jury found the property subject, and Mrs. Freeman's motion for a new trial was overruled, to which she excepted. In addition to the usual grounds of the motion that the verdict was contrary to law evidence, etc., it was alleged that the verdict was so strongly against the weight of the evidence as to make it the result of mistake or prejudice. Also that the courterred in admitting a mortgage dated February 21, 1888, over the objection of claimant that it was in no wise connected with the issue in this case, and that the execution of it in her presence and by her consent did not bind her as to the mortgage sued on. Also that the court erred in permitting the establishment of an alias fi. fa. in lieu of the original mortgage fi. fa. in this case, under the following circumstances: The case was called in its order and parties announced, "Ready." The jury was stricken, and the case opened. Plaintiff tendered a certified copy of the fi. fa., stating that the original was lost. The same was objected to on the ground that a fi fa. could not be established in that way, but that an alias must be established. The objection was sustained, and the court suspended the case, and allowed plaintiff to prepare and present pleading to establish an alias fi. fa.; all of which was done over the objection of claimant, who insisted that the case should proceed. And it was further alleged as error that the court admitted the fi. fa. thus established over the objection of claimant on the ground that the case was or had not been properly established. It was also alleged that the court erred in refusing to charge, as requested by claimant: "A married woman cannot become the security for anybody; and this is true whether she seek to become the security by signing her name to a note, or by consenting for another person to pledge or mortgage her property for his benefit." "And if you should believe from the evidence that Mrs. Freeman is and was a married woman at the time of the execution of the mortgage, and that the property mortgaged was her property, and that the debt was the debt of her brother, and not hers, then she could not consent to the mortgage; and, if you so believe, you will find for the claimant." "A married woman cannot consent to mortgage her property to secure ...