Green v. Scurry

• Decision Date: 11 May 1910
• Citation: 68 S.E. 77,134 Ga. 482
• Parties: GREEN et al. v. SCURRY et al.
• Court: Georgia Supreme Court

68 S.E. 77

134 Ga. 482

GREEN et al. v. SCURRY et al.

Supreme Court of Georgia

May 11, 1910

Syllabus by the Court.

On direct examination a witness was asked: "Did you have any information in the early part of the year 1902 to the effect that John Walker had escaped from the penitentiary?" On objection the court refused to allow the question to be answered. In an exception to this ruling it was not stated that the counsel informed the court what answer was expected, but it was stated that the counsel expected the answer "that he had." Held, the proper practice would have been for the counsel to have stated to the court the answer that he expected. Cæsar v. State, 127 Ga. 710 (5), 57 S.E. 66. And the testimony elicited should have related to facts, rather than to mere "information" of the witness. Atlanta Consolidated Street Railway Co. v. Bagwell, 107 Ga. 158, 33 S.E. 191.

While a trial judge may, within the restrictions prescribed by Civ. Code 1895,§ 5331, direct a verdict, this court will in no case reverse a trial court for refusing to do so. Central of Georgia Ry. Co. v. Mote, 131 Ga. 166, 62 S.E. 164.

Under the doctrines announced in the cases of Wilson v. Allen, 108 Ga. 275, 33 S.E. 975, and Murchison v. Green, 128 Ga. 339, 57 S.E. 709, 11 L.R.A. (N. S.) 702, the evidence was not of such character as authorized the judge to direct a verdict in favor of the applicant. For other cases, see note to Smith v. Fuller (Iowa) 16 L.R.A. (N. S.) 98.

Error from Superior Court, Mitchell County; Frank Park, Judge.

Petition by Eugenia Scurry for a year's support out of an estate, to which Aaron Scurry, guardian and next friend of Jamie Scurry, filed a caveat. Objections were sustained, and on appeal to the superior court there was a directed verdict for applicant, and the caveator and J. L. Green, administrator, bring error. Reversed.

Davis & Merry, for plaintiffs in error.

Spence & Bennet and Cox & Peacock, for defendants in error.

ATKINSON, J.

Judgment reversed. All the Justices concur.