Jones v. Cannady
| Decision Date | 14 January 1949 |
| Docket Number | No. 32239.,32239. |
| Citation | 51 S.E.2d. 551 |
| Parties | JONES. v. CANNADY. |
| Court | Georgia Court of Appeals |
the trial judge did not err in submitting the case to a jury.
3. "Where the movant in a motion for a new trial complains of a ruling excluding certain testimony, and this testimony, in substance, appears in the approved brief of evidence, the apparent conflicting statements will be harmonized by holding that, notwithstanding the ruling, the court at some other stage of the witness's testimony allowed the evidence."
4. Code, § 38-103. Accordingly, the charge of the court excepted to in special ground 6 of the motion was not error for any reason assigned.
5.
(a)
6. The verdict was authorized by the evidence.
7. The trial judge did not err in overruling caveator's motion for a new trial.
Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.
Proceeding by Veronia Cannady for administration of the estate of Gertrude King, deceased, to which Bill Jones filed a caveat. The court of ordinary appointed Frampton Ellis, County Administrator of Fulton County, as permanent administrator of the estate, and the caveator appealed to the superior court which rendered judgment in favor of Veronia Cannady, and the caveator brings error. The case was transferred from the Supreme Court, 49 S.E.2d 527.
Affirmed.
Gertrude Harris, Robert B. Blackburn, S. T. Allen and John Hudson, all of Atlanta, for plaintiff in error.
Walter A. Sims and Joseph S. Crespi, both of Atlanta, for defendant in error.
Veronia Cannady made application to the Court of Ordinary of Fulton County for administration on the estate of Gertrude King, deceased, and in her amended application she alleged that she was a niece of the deceased and had been selected in writing by the next of kin of said deceased to be appointed administratrix. In a caveat to the application Bill Jones alleged that the deceased was not Gertrude King, but was his wife, Gertrude Jones, and that he was the sole heir at law and had been appointed and qualified as temporary administrator. After a hearing the ordinary appointed Frampton Ellis, County Administrator of Fulton County, as permanent administrator of the estate. Caveator appealed to the Superior Court of Fulton County.
The case was tried before a jury in the superior court and Veronia Cannady testified: Deceased was her aunt and died on April 3, 1947. Next of kin were her mother, two brothers, and several nieces and nephews. The mother and brothers of the deceased selected witness to be the administratrix of the estate. Deceased was the widow of Jim King, had no children, and was not married to any one at the time of her death. Witness was reared in Atlanta but for some years had lived in other cities. She visited in Atlanta in 1941, 1944, 1945, and 1946, and while in Atlanta stayed withthe deceased and the mother of the deceased. She had seen Bill Jones around the home of the deceased, and in 1941 he had a room upstairs in her house at 277 Forrest Avenue. Deceased was living downstairs. During the past four years he had not lived in the house but sometimes came into the backyard in a car. She had never seen him take a meal at the deceased's house, and had never seen deceased go riding or shopping with him.
Bill Jones, the caveator, testified: He married deceased in November, 1942. At that time she was living at 277 Forrest Avenue in Atlanta and he lived with her. Bill O'Neal, Napoleon Thomas, Alberta Fortson, and a white man named Mc-Kinsey were present at the time he and the deceased married. When she died in April, 1947, he had a hotel on Decatur Street and was living there. He lived in the home of the deceased on Forrest Avenue in 1940 and 1941 and moved away in 1945. She would come over to the hotel on Decatur Street and when she spent the night there she slept with him. He testified in the court of ordinary that he lived with her eight years. Another wife, Maggie Petty, was living when he went to live with Gertrude and this wife died in 1941 and he became the common law husband of Gertrude King after that, around November, 1942. Witness identified his signature on a bill of sale indicating he sold Mrs. Gertrude King a diamond ring. (In the list of documentary evidence there is a bill of sale listed, dated March 22, 1943, for a diamond ring, parties to the transaction shown as Bill Jones and Mrs. Gertrude King.) He identified his signature on other writings wherein deceased was referred to as Mrs. Gertrude King subsequent to his alleged marriage to her. While he lived at Forrest Avenue he had a room upstairs and deceased lived downstairs. There were other roomers, but this was just a fake, as they sold liquor and rented rooms to transients. All the bills were in her name. She was a member of Turner Monumental Methodist Church and a worker in the church, but he tried to keep her from going to church. Business licenses, an automobile, membership in the Y. W. C. A. and Atlanta Branch N. A. A. C. P., taxes, and the deed to her home were in her name as Gertrude King.
Henry Tracy testified: He knew Bill Jones and in 1940 he met a person whom he understood was Gertrude, his wife. They had come into J. C. Collins' back yard on Forrest Avenue when the property was first zoned for colored people. Bill Jones had wanted to see J. C. Collins, and witness called Collins. Bill Jones introduced himself to Collins and introduced the person with him as Gertrude, his wife. They wanted to buy the house next door. Later he saw Bill Jones and Gertrude around the place next door, and when he left Atlanta in June, 1942, Bill and Gertrude were there.; He identified J. C. Collins' signature on a bill made out to Mrs. King for a 1938 Buick, and on another bill for a fuel pump exchange. In October, 1945, when he returned to Atlanta he first saw Gertrude at the house on Forrest Avenue and later saw Bill. The first time he saw Gertrude he asked where Bill was and she said "Oh, my old man is around somewhere."
William O'Neal testified: He knew a woman by the name of Gertrude King. She became Gertrude Jones in November, 1940, by marrying Bill Jones. Later he changed this date to November, 1942. They married by "jumping over the broom." She had a party one night, and she and another woman named Alberta, a man called Bear, one named Paul Jones, and another were there. Every one present was colored except a white man named Mc-Kinsey. Everybody drank whiskey but Bill Jones. Gertrude drew a chair and Bill drew a chair; they put a broom over the chairs; she jumped over the broom one way and Bill jumped over it the other way; and that was the way they declared their marriage. This took place at 277 Forrest Avenue. He saw them after that, and Gertrude always introduced herself as Bill Jones' wife. Later on he worked at Mauldin's Furniture Company and Gertrude bought furniture there as Mrs. Bill Jones. After that he did some general housework for Gertrude and collected his pay from Bill Jones.
J. C. Collins testified: He lived next door to 277 Forrest Avenue and knew Gertrude as Gertrude King and as Gertrude Jones, wife of Bill Jones. When he first became acquainted with them, the latter part of 1939, or in 1940, they made themselves.known to him as husband and wife. They wanted to buy the place next door to where he lived on Forrest Avenue and later bought it. From time to time since then he had transactions with Bill and Gertrude. When he did work for Gertrude she asked him to make the bill to Gertrude King, and he never asked why. For a year or more before Gertrude died Bill was not around the place on Forrest Avenue as much as previously. The only thing that ever happened to cause him to think they were not husband and wife was the number of people who came and asked where Gertrude King lived. Bill Jones was living there at the time.
Alberta Fortson testified: She knew Bill Jones and a woman named Gertrude King or Gertrude Jones. She knew her for ten or twelve years, first on Edgewood Avenue and later on Forrest Avenue. She was present at the marriage of Bill and Gertrude and testified to this incident substantially in the same manner as William O'Neal. Before the marriage Bill lived upstairs, and after the "broom jumping" incident he moved downstairs. After the latter part of 1942 she often saw Bill and Gertrude. They were living together, sleeping together. She saw them in bed together as husband and wife. They lived together like that until he bought another rooming place on Decatur Street. After that he had to stay over there. Gertrude went to the hotel or rooming house on Decatur Street quite often.
Rubin Hall testified that Bill Jones...
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Parker v. Melican
...Heard, supra at 111-112, 538 S.E.2d 434. See also Farmers' State Bank v. Kelley, 159 Ga. 280, 125 S.E. 467 (1924); Jones v. Cannady, 78 Ga.App. 453(4), 51 S.E.2d 551 (1949). Contrary to propounders' argument, the Suggested Pattern Jury Instructions clearly reflect this law. See Suggested Pa......
- Jones v. Cannady