Groover v. Simmons
| Decision Date | 18 September 1925 |
| Docket Number | 4611. |
| Parties | GROOVER v. SIMMONS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A verdict authorized by the evidence and having the approval of the trial judge will not be disturbed, unless there are errors plainly disclosed by the assignments of error in other grounds of the motion for a new trial which would warrant a reversal as matter of law, because such error may have contributed to or have induced a finding upon fact bespoken in the verdict of the jury.
In administering the rule which requires the sequestration of witnesses upon the request of either or of both parties to a cause, the judge of the superior court is invested with a broad discretion which is to be liberally construed, and the exercise of this discretion will not be controlled or overruled, except in case of an abuse of discretion. Under the circumstances disclosed by the record in this case, we cannot hold that the trial judge abused his discretion, and that the exclusion of the witness in the circumstances stated would require the grant of a new trial.
As appears from the explanatory note of the trial judge, the point presented for the consideration of the Supreme Court in the second ground of the amendment to the motion for a new trial does not present the same question as was presented to the trial court and which was the subject of his ruling in the trial, and for that reason presents nothing for the consideration of this court. A question not raised in the trial court cannot be raised or adjudicated by a court of review.
The court did not err in permitting proof of the value of that portion of the land which the plaintiff was attempting to exclude from the conveyance by a reformation of the deed thus permitting the defendant to show, if he could, by comparison with the value of the tract of land as a whole that it would have been most unreasonable for the defendant to have accepted a deed to less than the entire tract as described therein, by reason of the fact that the part to be excluded, and which was included in the deed, was far more valuable than the remainder of the tract. While the real issue in the case was whether the deed should be reformed so as to convey only 632 acres instead of 920 acres of land still the circumstance that the 632 acres by itself would not be worth any more than the 288 acres which it was sought to subtract from the deed by reformation might be a circumstance indicating that there was neither such fraud, accident, or mistake as would warrant a reformation.
Testimony to the effect that Dan R. Groover, who, though not a party held a deed from the plaintiff's intestate prior in date to that under which the defendant claimed, made statements to a named witness indicating that he had knowledge of the liens to which the land purchased by him was subject, was admissible over the objection that the evidence related to a conversation six months prior to the defendant's purchase of the land, as well as the further objection that the conversation or statement referred to was not with James B. Groover (the plaintiff's intestate) but with Dan R. Groover, who was not a party to the case. There was a conflict in the testimony of Dan R. Groover and E. A. Corey as to whether Dan R. Groover disclaimed any equity in the land on account of the older liens, and as to whether Dan R. Groover knew at the time that the deed from the plaintiff's intestate to the defendant purported to convey 920 acres, and the evidence was admissible for the purpose of corroborating Corey and discrediting Groover.
Value cannot be established by proof that the owner of the property or his agent was offered a certain price therefor at a time and upon an occasion entirely disassociated from the transaction under consideration. The repetition by the witness of the language used in the offer is at most only the statement of one not under oath, of his unsworn opinion as to the matter of value--mere hearsay and of no probative value.
Error from Superior Court, Bulloch County; Eschol Graham, Judge.
Action by J. R. Groover, administrator, against Brooks Simmons. Judgment for defendant, and plaintiff brings error. Affirmed.
Hinton Booth and Anderson & Jones, all of Statesboro, for plaintiff in error.
Deal & Renfroe, Fred T. Lanier, and F. B. Hunter, all of Statesboro, for defendant in error.
The action now before us was originally one to rescind a contract of sale and cancel a deed executed by James B. Groover to Brooks Simmons. There was also a prayer that "in the event * * * a jury should find that said sale should not be rescinded, that the deed made by plaintiff to defendant be reformed so as to speak the truth, and to convey only 632 acres of land." The suit was filed on October 22, 1917. By an amendment allowed on April 24, 1918, the plaintiff struck certain paragraphs of the petition which alleged the petitioner's incapacity to contract, and struck the prayer asking rescission and cancellation, and set up instead that the defendant had actual notice that the petitioner only owned 632 acres of land, and was informed by the petitioner that he had previously sold and conveyed to his sons 288 acres of the 920-acre tract; that his sons were in possession of same under duly recorded deeds; and that he only owned and could convey only 632 acres of land. The amendment alleged that "the agreed purchase price of the said 632-acre tract of land that petitioner informed defendant was all he held title to and could convey was $12,000, and said defendant agreed and promised to pay petitioner said amount for said land, with the understanding that the defendant would pay off and have canceled at once all the outstanding liens and incumbrances against said land, * * * using such portions of the purchase money as might be required for that purpose, and then pay petitioner the surplus, whatever it might be, and would give to petitioner the benefit of any discounts that might be obtained in the settlement of said liens and incumbrances." A list of the liens and incumbrances was attached to the petition as Exhibit B. In the amendment the petitioner further alleged:
Upon this amendment, the petitioner prayed specific performance of the contract as alleged, and that the defendant be required to pay off and cancel of record all the liens and incumbrances that were outstanding against said land at the date of said deed. He also prayed for a judgment against the defendant for the amount due him in excess of $500, "to wit, $______." However, the second prayer of the original petition, in which it was asked that the deed made by the petitioner to the defendant be reformed so as to speak the truth and to convey only 632 acres of land, was not stricken. The case has previously appeared in this court. Groover v. Simmons, 152 Ga. 423, 110 S.E. 179. At that trial there was a verdict for the plaintiff, and exception was taken by the plaintiff Groover to the grant of a new trial. The judgment of the court, in granting a new trial upon the ground that one of the jurors was related within the prohibited degree, was affirmed with directions by this court on December 16, 1921. This court held that the evidence authorized the grant of a new trial upon the grounds stated, but that it was error not to have stricken two of the paragraphs of the defendant's answer, which were directed by this court to be stricken upon a further trial. Upon the trial now under review, the jury found a verdict in favor of the defendant. The plaintiff made a motion for a new trial, which was overruled, and the exception is to the judgment refusing a new trial. There is no complaint as to the charge of the court. The motion rests upon the general grounds and five additional grounds added by way of amendment.
1. After a careful review of the evidence, we are satisfied that the verdict in favor of the defendant was authorized, and, having the approval of the trial judge, it will not be disturbed, unless for such error plainly disclosed by the grounds of the amendment to the motion for a new trial as would warrant a reversal, although the evidence in behalf would have authorized a finding in his favor had the jury seen fit to give this testimony the preference on the contested issues where the testimony of the parties was in sharp conflict.
2. In the first ground of the amendment to the motion for a new trial, the movant complains that "when it appeared at the beginning of the trial of said case that J. R. Groover administrator, the nominal plaintiff in the case, was absent, and when defendant's counsel had invoked the rule of sequestration as to plaintiff's witnesses, plaintiff's counsel asked the court to allow Dan R. Groover to...
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