Hyer v. C.E. Holmes & Co.
| Decision Date | 25 June 1913 |
| Docket Number | 4,381. |
| Citation | 79 S.E. 58,12 Ga.App. 837 |
| Parties | HYER v. C. E. HOLMES & CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court did not err in overruling the demurrers to the defendant's answer after the answer had been amended.
Either party to a cause may, by proper amendment, conform his pleadings to the evidence which has been introduced, and after such amendment the court may properly refuse to rule out testimony, though it would originally have been irrelevant or incompetent. Under the amendment allowed by the court in this case, without objection, the oral evidence touching the written contract originally alleged in the petition was relevant and competent, and the court did not err in overruling the motion to exclude this testimony.
One who assumes the burden of proof is only required to carry the burden of evidence until his contention has been prima facie established. The position of the "burden of proof" is determined by the pleadings, and as to this the burden of proof is unchanging; once imposed it remains. But the burden of testimony may be shifted and alternate between the parties according to the contingencies and crises of the trial.
A trial judge in declaring that the party having the burden of evidence with regard to a particular fact has so discharged it that the burden of evidence has been shifted to his opponent may properly consider the question as to which party has within his possession or control the more precise and conclusive knowledge as to the particular fact or facts in issue. Generally, facts that are peculiarly within the knowledge of a party must be proved by him, and a judge may more promptly discharge a litigant from his burden of evidence either when knowledge as to the proposition is peculiarly within the power of his opponent, or where the proposition is a negative one. Where the means of proving a negative are not within the power of one of the parties, but all the proof on the subject is within the control of the other, who, if the negative is not true, can disprove it at once, the truth of the negative averment can be presumed from the fact that the party who has within his power proof (if such exists) that the negative is not true still withholds or does not produce such proof. In other words, in such a case the burden of proof is thrown upon the party having the power to produce such proof to prove the affirmative against the negative averment.
It is not error to allow an amendment to the pleadings, after the close of the evidence and the argument of counsel, provided the amendment is supported by evidence, and is not otherwise objectionable for such reason as the introduction of new parties or a new cause of action, and the like.
A motion for continuance based upon the ground of surprise is defective, unless the court is advised in the showing for continuance wherein and in what respect the movant is not prepared to proceed with the trial, and how or why he will be better prepared to meet the issue in the event the court should continue the case upon his motion.
(Additional Syllabus by the Editorial Staff.)
The meaning of the term "onus probandi" is that, if the party who has the burden of proof does not offer any evidence in the case, the issue must be found against him (citing 1 Words and Phrases 905).
Error from City Court of Moultrie; W. E. Thomas, Judge.
Action by J. W. Hyer against C. E. Holmes & Co. Judgment for defendant, and plaintiff brings error. Affirmed.
E. L Bryan, of Moultrie, for plaintiff in error.
T. H Parker and Shipp & Kline, all of Moultrie, for defendant in error.
The plaintiff in error brought suit against C. E. Holmes & Co. upon a note for $3,500 and interest and attorney's fees. The note was payable to the order of the People's Bank of Pensacola, Fla., and in the course of the trial the petition was amended to show that it had been duly transferred and assigned to the plaintiff. The firm of C. E. Holmes & Co. was composed of several persons, and both the partnership and the individuals composing it were sued, but C. E. Holmes was the only partner served. Several amendments to his original answer, which were presented to and allowed by the court, are made the subject-matter of exception. As set out in his answer, as finally amended, his defense rested upon the proposition that he had sold to Hyer, the plaintiff, his fourth interest in the firm of C. E. Holmes & Co., upon Hyer's agreement to pay him $10,000 for his interest, and also to pay the debts of the firm, provided they did not exceed $35,000; that of these partnership debts the sum of $6,000 was due to Holmes himself, as was also the note in suit; and that he not only did not owe the note for $3,500, but the plaintiff owed him $10,000, according to the terms of the contract of sale. The jury sustained his plea, and returned a verdict in his favor and against the plaintiff for $10,000 principal, $3,500 interest to date, and costs of the suit. This writ of error presents for review certain rulings to which exceptions were taken pendente lite, and also the judgment overruling the motion for a new trial. There can be no question that the evidence authorized the finding of the jury, and, in fact, this is unquestioned in the brief of counsel for the plaintiff in error. It is insisted, however, that the verdict is wholly unwarranted because it depends upon and was induced by errors of the court in allowing amendments to the defendant's answer, and in admitting and refusing to exclude evidence which the plaintiff in error contends was illegal. Error is also assigned upon the refusal of the court to continue the case on the ground of surprise, and upon the allowance of an amendment to the answer after the evidence had been closed and the argument in the case concluded. Furthermore, it is strongly insisted that, since the defendant assumed the burden of proof, the court erred in holding, under the circumstances of the case, that it was not incumbent upon the defendant to prove that Hyer had not paid any more than $35,000 of the debts of the partnership, as he had contracted to do. We will first consider the assignments of error relating to the amendments to the answer.
1. On February 15, 1912, the court permitted the defendant C. E. Holmes to amend his answer by setting up that at the time he delivered the property which consisted of his fourth interest in the firm of C. E. Holmes & Co. to Hyer and Gonzales he delivered to them all of his books of account, and other evidences of indebtedness by Holmes & Co., and that since then he had no access to those books, and was unable to furnish a list of the creditors of Holmes & Co. The amendment alleged also that the contract by which Hyer and Gonzales assumed to pay all the debts of Holmes & Co., including the note sued on, was in writing and executed in duplicate, but that the defendant had lost his copy of the contract, and it was impossible for him to attach a copy of the contract to the answer, but that at the time of the sale the principal creditor of Holmes & Co. was the firm of J. P. Williams & Co., which firm held a security deed to all of the real estate of Holmes & Co., and that the defendant delivered to Hyer and Gonzales a written order directing J. P. Williams & Co. to execute and deliver to Hyer and Gonzales title thereto, and that upon this instrument they secured and received from Williams & Co. the defendant's fourth interest in the partnership property. In the amendment the note which was the basis of the suit was stated to be one of the debts of the firm of Holmes & Co. which Hyer and Gonzales agreed to pay; and it was also alleged that the plaintiff had not paid the defendant a debt of $6,000, included in the indebtedness of Holmes & Co., which the purchasers of his interest assumed. By further amendment the defendant struck that portion of his original plea in which he prayed recoupment and judgment against the plaintiff for $6,000 as evidenced by six notes of $1,000 each alleged to be owned by the Citizens' Bank of Moultrie.
In the demurrer to this amendment it was insisted that, inasmuch as the defendant had assumed the burden of proof, he should be required to attach a list of the items of indebtedness, and also to attach a copy of the deed alleged by the defendant to have been executed by himself to the plaintiff and C. P. Gonzales, together with a copy of the alleged agreement to assume and pay certain indebtedness of C. E. Holmes & Co. We think the court was right in overruling this demurrer. A demurrer to the answer before amendment based upon several grounds had been overruled, but no exceptions to this ruling had been preserved. The only question then presented to the court was whether the court should require the defendant (who, according to the allegations of the original answer, had in his possession none of the documentary evidence which the plaintiff asked to be set out) to attach copies thereof upon pain of being dismissed if he failed to do so (and that, too, when it affirmatively appeared that this evidence was peculiarly within the knowledge and power of the plaintiff), merely because in his original answer the defendant had assumed the burden of proof. Even if the question can be raised by demurrer, the court, under the allegations in the original answer, did not err in allowing these amendments because no exceptions were filed to the order overruling the demurrer to the original answer, and that ruling was res judicata. Consequently, if the amendment merely amplified the statement of the cause of action set up in the original answer, without introducing a new cause of action or any additional party, it would be germane and allowable.
The propriety of the court's ruling upon the...
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