Hardeman v. Ellis

Decision Date18 September 1926
Docket Number5048,5052.
Citation135 S.E. 195,162 Ga. 664
PartiesHARDEMAN v. ELLIS. ELLIS v. HARDEMAN.
CourtGeorgia Supreme Court

Rehearing Denied Sept. 30, 1926.

Syllabus by the Court.

The court did not err in overruling the general demurrer to the first count of the petition.

The court did not err in overruling the general and special demurrers to the second count.

Nor did the court err in overruling the demurrer to the petition as amended.

The plaintiff in this case was estopped from maintaining his suit for specific performance of the contract alleged, in which he sought to have decreed in himself title to the entire property owned by his testatrix at the time of her death, and devised by her and given to the executor and other beneficiaries, on the ground that he had had the will probated and qualified as executor, and continued in the office of executor for two years, during which time he had discharged the duties of his office and paid out large sums of money; this conduct being inconsistent with his claim of title to the entire estate of his testatrix.

Where application is made to perpetuate the testimony of a witness under the provisions of Civil Code 1910, § 4560, and several parties are named in the application as the parties against whom the suit will be brought, but when the suit is actually brought only one of the parties named as being probably interested is made defendant, this will not afford ground to suppress the interrogatories. To make available the interrogatories taken in such a proceeding, it is not necessary that the suit should be filed against all of the parties named in the application.

The ground of the motion to suppress the interrogatories, that parties named in the application for the order to perpetuate testimony were not served with notice or process before the order was granted, was properly overruled.

The ground of the motion to suppress, etc., based upon the contention that the notice required under the provisions of the statute contained in section 4560 of the Civil Code of 1910, was not given to the opposite party, were properly overruled.

The fact that the order of the court granted upon the application to take testimony, etc., after naming the commissioner, a disinterested attorney of the court, did not state his residence, is not ground for objection to the interrogatories.

The contention that the publication of the notice as it appeared in the newspaper in which it was published is insufficient in law, in that it does not state where Robert L. Anderson, the commissioner, resides, and does not state the court wherein the application was filed, nor the court wherein the contemplated suit is thereafter to be filed, is not meritorious, in view of the fact that the notice as granted and published is signed, "C. R. Wright, Deputy Clerk Superior Court, Bibb Co."

In ground 22 of the motion to suppress it is alleged that the application and order were not entered on the minutes before delivery to the commissioner. In the absence of proof to support this allegation, the court did not err in overruling this ground. Besides, it would seem that the failure to enter the application and order on the minutes was a mere irregularity, which would not vitiate the order, nor afford ground to suppress the interrogatories.

The ground of the motion to suppress, based upon the contention that at the time of filing the application to perpetuate testimony the applicant had the right to commence a suit which would have determined all his rights as claimed in the present suit, was properly overruled.

Section 4560 of the Civil Code of 1910 is not in violation of the due process clause of the state and federal Constitutions, upon any of the grounds urged in the motion to suppress the interrogatories in this case.

The verdict in this case should not be set aside, because there is no evidence to show the value of the property or the value and extent of the services involved in the contract under consideration.

What is said in the next preceding note rules on the question made by the assignment of error in ground 14 of the motion for new trial.

The rulings already made and what is said in other parts of the opinion dispose, in effect, of the contentions made in grounds 7 and 8 of the motion for new trial, that there was no valuable consideration shown. The substance of these two grounds were, in effect, disposed of in the rulings upon the demurrers.

Ground 10 of the motion for new trial is disposed of in the various rulings upon the exceptions to the judgment of the court overruling the motion to suppress the interrogatories of Ellen W. Bellamy.

The court charged the jury as follows: "Now, if the plaintiff establishes his contentions with that degree of certainty required by the law, then he has carried the burden of proof, and he would be entitled to a verdict at your hands." This charge is excepted to upon the ground that it was "a virtual instruction to the jury that, if the plaintiff by his own evidence and that of his witnesses prima facie established his contentions, he would be entitled to a verdict, notwithstanding any proof that might be submitted by the movant." The charge complained of is not open to this objection, and its correctness is not challenged upon any other ground.

The charge complained of in the twelfth ground of the motion for new trial is not erroneous for any of the reasons assigned.

The court did not err in giving the following charge to the jury "And they [the plaintiffs] contend that William Lee Jr., the plaintiff in the case, complied with every part of that contract, did relinquish the Baltimore position, did remain with his aunt from that time up to the time of her death, and performed all the duties and services and rendered all the affection that was contemplated under the last-mentioned contract."

Error is assigned upon the following charge of the court: "If William Lee Ellis, Jr., was placed under the control of William Lee Ellis, Sr., and his wife, and if he did not live with them all the time, that fact of itself would not prevent a recovery in this case on the first count, if his failure to live with them all the time was no fault of his, but was due to their direction or permission in their control over him." Inasmuch as the jury found for the plaintiff only upon the second count, it is not necessary to consider the effect of this charge, which related entirely to the plaintiff's right to recover on the first count.

In numerous grounds of the motion for new trial complaint is made of various portions of the court's charge, in which the court dealt with the contentions of the defendant that there was a rescission or abandonment of the contract by agreement between the parties, or by an agreement between the plaintiff and the plaintiff's aunt, and with certain alleged acts of the plaintiff which the defendant insists amounted to a breach or abandonment of the contract, and in view of which, as the defendant contends, the plaintiff would not be entitled to recover, even if the contract was proved. After a careful examination of the instructions complained of in those parts of the charge, the court is of the opinion that they correctly stated the law applicable to these questions. Nor do we find that in these excerpts from the charge last referred to there was any expression or intimation of OPINION as to what had been proved, in violation of the statute inhibiting an expression of opinion upon the facts by the court.

The charge complained of in the eighteenth ground of the motion for new trial was not erroneous for any reason urged, but seems to have properly submitted certain of the issues involved in the case.

Error is assigned upon the following charge of the court: "Now, if that contract be established as required by law, and there has been full and substantial performance of the contract, the will would not have anything to do with the specific performance of those contracts; the contract would have been made in the lifetime of Mrs. Gazalene Ellis, and would be superior to her will, and the will would have nothing to do with the property." This charge should be read in connection with the portion of the instructions almost immediately following, viz.: "I do not mean to say you should just eliminate the will from the evidence in the case; the will is one fact and circumstances in the case, which you should consider, just as you consider any other circumstance in the case, as throwing light upon the question whether or not the contracts contended for in this case were made; but, if these contracts were made and were performed, the plaintiff would recover regardless of the will." When considered together, neither of these charges was error. In view of what is said above, the portion of the charge excepted to in ground 22 of the motion for new trial was not error.

The court charged the jury as follows: "The defendant, on the other hand, contends that the plaintiff has not shown either one of the contracts sued on in this case, and especially that those alleged contracts have not been proved with that clearness and strength and definiteness which would enable you to reach that degree of certainty as to their existence which is required by law. That is purely a question of law. If they have not, if he is right in that contention then the plaintiff cannot recover." This is excepted to upon the ground that it does not fully state the contentions of the defendant. This is not a good ground of exception to the charge. The fact that in one particular part of the charge the court did not state fully the contentions of the defendant is not a ground for holding that part of the charge error, if in itself it states a correct proposition of law...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT