Kenner v. Kenner, 22727
| Decision Date | 08 January 1965 |
| Docket Number | No. 22727,22727 |
| Citation | 220 Ga. 518,140 S.E.2d 187 |
| Parties | James KENNER et al. v. Harris KENNER. |
| Court | Georgia Supreme Court |
Sidney T. Schell, Atlanta, John L. Lee, Dunwoody and Vester M. Ownby, Atlanta, for plaintiffs in error.
John Hollis Allen, Atlanta, for defendant in error.
Syllabus Opinion by the Court
James and Comer Kenner instituted a suit against Harris Kenner in the Fulton Superior Court praying that a certain warranty deed purporting to convey a house and lot from Howell Kenner to Harris Kenner be canceled and for other forms of relief. Howell Kenner was alleged to be the father of both the plaintiffs and the defendant. The petition related Howell Kenner was deceased and certain other persons were made parties, one of whom was alleged to be his widow and others to be his heirs at law. It was alleged the deed should be set aside and declared void because the maker of the deed at the time he executed the same on August 30, 1946, or at any time thereafter until his death which occurred on April 27, 1954, had insufficient mental capacity to make the deed. Some of the relief sought related to the disposition of the property described in the deed in the event the deed was set aside. The trial judge submitted to the jury the sole question whether Howell Kenner was mentally competent to make the deed. The jury returned a verdict in favor of the defendant. The plaintiffs made a motion for new trial upon the general grounds and five special grounds. The motion was overruled, the plaintiffs excepted and brought the case to this court for review. Held:
1. The general grounds of the motion for new trial were not insisted upon in this court and must be treated as abandoned. Roseman v. Wright, 209 Ga. 748(1), 76 S.E.2d 7, and cases cited.
2. Ground 1 excepts to a statement made by the trial judge apparently in ruling upon the admissibility of evidence. The statement is: . The exception taken to the quoted statement was: 'Plaintiffs contend that this language of the Honorable Court was the expression of an opinion, and had the effect of directing the attention of the trial jury to whether or not the deed was valid on its face, or whether it was drawn properly, instead of the real issue of whether or not the grantor, Howell Kenner, was competent to make a valid deed at the time he made his mark thereon, or whether he was sane or insane when he executed the deed.' The ground does not set out the evidence to which the statement refers or furnish sufficient information from which it may be determined whether the statement was subject to the criticism made. The ground not being complete and understandable, if presents no question for consideration. Kelley v. State, 210 Ga. 118(2), 78 S.E.2d 11; Rushing v. Akins, 210 Ga. 450 (la), 80 S.E.2d 813.
3. Special ground 2 alleges the court erred in excluding certain tax returns on the lot, the deed from Howell Kenner to Harris Kenner purported to convey, made by one Lillian Smith on behalf of Howell Kenner for the years 1950, 1951, 1952 and 1953, in which a homestead exemption for each year was claimed for Howell Kenner. The plaintiffs insist the returns were admissible for the purpose of showing ownership of the property in Howell Kenner and were indicative that he had no memory or recollection of having executed the deed to Harris Kenner. The tax returns had no relevancy or probative value for the reason that no proof was offered to show Howell Kenner authorized Lillian Smith to make the returns or was even aware she had made them. Mitchell v. Gunter, 170 Ga. 135, 146, 152 S.E. 466; Chamblee v. Johnson, 200 Ga. 838(2), 38 S.E.2d 721; Davis v. Newton, 217 Ga. 75, 82(6), 121 S.E.2d 153.
4. Grounds 3 and 4 of the amended motion for new trial assign as error the admission of certain evidence. 'Where a special ground does not set forth...
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