J.J. Bull & Son v. Carpenter

• Decision Date: 19 September 1924
• Docket Number: 14261.
• Citation: 124 S.E. 381,32 Ga.App. 637
• Parties: J. J. BULL & SON v. CARPENTER.
• Court: Georgia Court of Appeals

124 S.E. 381

32 Ga.App. 637

J. J. BULL & SON v. CARPENTER.

No. 14261.

Court of Appeals of Georgia, Second Division

September 19, 1924

Syllabus by the Court.

No error is shown in the refusal of the trial judge to charge as requested by the plaintiffs. In his answer to the writ of certiorari, the judge certified that the requests were "refused for the reason that all the issues involved were covered in the general charge of the court." The charge is not in the record. "An assignment of error on the refusal to give a written request to charge cannot be considered when the trial judge certifies that he covered the request in his instructions to the jury, and the charge of the court is not specified as a part of the record to be transmitted to this court." Tucker v. Cen. Ry Co., 122 Ga. 387 (7), 393, 50 S.E. 128. This rule relating to writs of error in the appellate courts from judgments on motions for new trial, is applicable to writs of certiorari to the superior court, where the charge is not included in the petition, attached exhibits, or answer of the trial judge, and where the trial judge, as here, answers in effect that the request was covered by the general charge. In such a case the superior court, and this court on a bill of exceptions from its judgment, "must assume that the request to charge was sufficiently covered by other instructions given to the jury as to the matter to which it related." Freeman v. Mencken, 115 Ga. 1017 1020, 42 S.E. 369, 371; Mickleberry v. O'Neal, 98 Ga. 42 (5), 25 S.E. 933.

The verdict cannot be set aside as being without evidence to support it, for the reason set forth in the opinion.

Additional Syllabus by Editorial Staff.

While hearsay evidence will not support verdict or afford corroboration of witness testifying falsely, under Civ. Code 1910, § 5884, evidence of witness of his "understanding" as to certain facts, otherwise positively stated, cannot be rejected as hearsay.

Verdict without supporting evidence is contrary to law; but verdict, based on secondary evidence unobjected to, may be valid, where it rests on sufficient testimony possessing probative value, even though incompetent, under proper objection.

Opinionative statement of witness, even though it be conclusion unsupported by such facts as show its correctness, when not objected to, cannot be challenged for first time on review as incompetent and insufficient.

Error from Superior Court, Tift County; R. Eve, Judge.

Action by J. J. Bull & Son against R. P. Carpenter, trustee. Judgment for defendant, and plaintiffs bring error. Affirmed.

See, also, 123 S.E. 614.

J. J. Bull & Son, of Oglethorpe, and J. H. Poole and Fulwood & Murray, all of Tifton, for plaintiffs in error.

J. S. Ridgdill and S. F. Mitchell, both of Tifton, for defendant in error.

JENKINS P.J.

This was a suit brought by a firm of attorneys against a trustee for a sum claimed to be due for legal services, under an express oral contract alleged to have been made by a predecessor in office of the defendant trustee. In addition to their own evidence in support of their claim, the plaintiffs offered the interrogatories of the former trustee testifying positively that he had employed the plaintiffs and made a contract with them to represent him as trustee, and that they had successfully represented the trust estate. The defendant, however, offered in rebuttal the depositions of this same former trustee, taken subsequently to his interrogatories, in which he affirmatively denied the making of any contract as trustee, or for the trust estate with the plaintiffs, swore that he had contracted solely as an individual for the representation only of his individual interest, which was involved, and made no explanation of his conflicting testimony contained in the interrogatories sued out by the plaintiffs.

As we first conceived the case, it would be controlled by an answer to the following question certified to the Supreme Court:

"Where a suit is brought against a trustee for a sum alleged to be due for legal services, under and by virtue of an express oral contract alleged to have been made with a predecessor in office of the defendant trustee, and where, in support of his own evidence that such contract was made, the plaintiff introduces the interrogatories of the former trustee, by which the making of the alleged contract is corroborated, but the defendant, the present trustee, introduces in rebuttal depositions of the same former trustee, taken subsequently to his interrogatories, in which depositions he affirmatively denies the making of the contract sued on, but without any explanation of his conflicting testimony as contained in the interrogatories sued out by the

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