Horan v. Pirkle

Decision Date03 October 1990
Docket NumberNo. A90A1650,A90A1650
Citation197 Ga.App. 151,397 S.E.2d 734
PartiesHORAN v. PIRKLE.
CourtGeorgia Court of Appeals

Westmoreland, Patterson & Moseley, Thomas H. Hinson, for appellant.

Thomas F. Jarriel, for appellee.

BIRDSONG, Judge.

Appellant, Betty Horan, appeals the final judgment and decree entered against her in the action for theft and conversion brought by appellee, Omergene C. Pirkle.

This action arises from the averred taking of certain personal property of appellee's deceased husband who was appellant's brother. Held:

1. Appellant alleges the trial court erred in admitting in evidence certain hearsay testimony under the provisions of OCGA § 24-3-8. Appellant asserts, inter alia, that the statements of the deceased were inadmissible, because they were made while litigation actually was pending and not merely with a view toward litigation. Pretermitting the question whether the trial judge breached his discretion in admitting the deceased's statements, as deceased and appellee had a divorce action pending at the time the statements were made, is the question whether appellant has preserved her right to appeal this particular issue by posing a timely and specific objection thereto before the trial court.

The trial record reflects the following pertinent colloquy: "[APPELLEE]: I called my husband at [appellant's] ... and asked him if he took it. He said he didn't take a damn thing.... [APPELLANT'S COUNSEL]: Your Honor, I think ... this is all hearsay. If we're going to get into what Mr. Pirkle said we're going to have a lot of testimony.... THE COURT: I think she can do that if it's a declaration against his interest but go ahead. This will make it a little bit clearer. [APPELLEE'S COUNSEL]: I'm not getting into that anyway." Thereafter, appellant posed no additional comments regarding the testimony that deceased had denied taking the property.

If the comment of appellant's counsel was intended to raise a timely, specific objection to the above testimony, it was not in proper form and apparently was misleading to the trial court who did not expressly rule thereon. Compare Gully v. Glover, 190 Ga.App. 238, 241(4), 378 S.E.2d 411. Moreover, after the trial judge announced his preliminary interpretation of the evidence in question, appellant failed to pose a specific objection to the testimony, did not assert that the evidence failed to qualify as a declaration against interest, and in essence acquiesced by silence in the trial court's evaluation of the nature of the evidence received. " 'One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.' " Stephenson v. Wildwood Farms, 194 Ga.App. 728, 729(2), 391 S.E.2d 706. Moreover, assuming arguendo error had occurred in the admission of this particular evidence, we believe it was not inconsistent with appellant's theory of defense, and that any error was harmless within the meaning of OCGA § 9-11-61.

Subsequently, an additional statement of the deceased was offered in evidence and the following colloquy occurred: "[APPELLEE'S COUNSEL]: Mrs. Pirkle, did you have any other discussions with Mr. [Pirkle] about missing items? ... THE COURT: I think under the case law she can--if it was a declaration against his interest, which apparently it was--I take it he's going to say he took the items or whatever. [APPELLEE'S COUNSEL]: Yes, sir. THE COURT: All right. Go ahead. [APPELLANT'S COUNSEL]: Your honor, again, I would like to object on the basis that he is not a party.... I agree that it was a declaration against interest in a party, there's no question about it. These are separate parties in this group. We can't be responsible for what he may have said. THE COURT: I understand. But I think in fact if he was a party--[APPELLANT'S COUNSEL]: I don't see how it--THE COURT:--that we couldn't do it. We'll allow it. Go ahead." (Emphasis supplied.)

Appellant's objection to this particular testimony clearly was based on the sole ground that the declarant was not a party in the case sub judice. The trial court did not err in overruling this specific objection, as it is not necessary for purposes of OCGA § 24-3-8 that a declarant be a party or in privity with a party. Compare Field v. Boynton, 33 Ga. 239 and Massee-Felton, etc., Co. v. Sirmans, 122 Ga. 297, 50 S.E. 92; Green, Ga.Law of Evid. (3d ed.), Admissions, § 240.

Appellant did not pose a timely objection at trial to the deceased's statement on the specific grounds now asserted in her brief. "Thus, in regard to these new matters, there is nothing for us to review ... since appellant failed to make [her] objection at trial on the specific ground [s]he now attempts to...

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