King v. Thompson
| Decision Date | 31 August 1877 |
| Citation | 59 Ga. 380 |
| Parties | Mary E. King, plaintiff in error. v. James A. Thompson, defendant in error. |
| Court | Georgia Supreme Court |
Practice in the Superior Court. Corporations. Stockholders. Husband and wife. Attachments. Before Judge Harris. Pulaski Superior Court. May Term, 1877.
Thompson sued out an attachment against Mary E King and Clifford A. King. He also filed a declaration. This, after stating the debt, alleged the suing out, pendency, and return of an attachment for the same cause of action, and closed without any prayer.
Defendant, Mary E. King, pleaded as follows:
1st. The pendency of a former attachment for the same cause.
2d. That the note, on which the action was founded, was not the property of Thompson, but of the Hawkinsville Bank and Trust Company; that Thompson was a director in that bank, and had notice of all the facts pleaded.
3d. That the county judge who attested the affidavit, received the bond, and issued the attachment, was, at the time, a director and stockholder in said bank.
4th. That the note was signed by Mrs. King, not for her own debt, but as an assumption of the debt of her husband.
The evidence was, in brief, as follows:
The note, for $1,557.95, signed by defendants, and indorsed by Lamar & King, (of which firm C. A. King was a member,) was discounted by that firm at the bank, the money passed to their credit and drawn by them. After it became due, it was transferred to plaintiff, who was a director. He had another claim against Mrs. King, which he considered secure; he agreed to take the note and pro-rate with the bank the collection made; up to the present time, the bank has received nothing. This transfer occurred before thecommencement of this suit. A former attachment had been *sued out, but dismissed. The county judge, before whom the proceedings were begun, was a director and stockholder in the bank. M. E. King is the wife of C A. King.
The jury found for the plaintiff. Mrs. King moved for a new trial, on the following, among other grounds:
1st. Because the verdict is contrary to law, evidence, and the weight of the evidence.
2d. Because the court overruled a demurrer of defendant to the declaration, on the ground that it contained no prayer.
3d. Because the verdict is contrary to the charge of the court, that if the note was signed by Mrs. King, for the pur-pose of having the same discounted for the benefit of her husband or his firm, her estate would not be liable thereon.
4th. Because, after the jury had been considering the case all night, the judge allowed a witness, about whose testimony they differed, to answer certain questions put to him by the foreman, but refused to allow a cross-examination, or admit rebutting evidence.
The motion was overruled, and defendant excepted.
Lanier & Anderson, Hill & Harris; L. C. Ryan, for plaintiff in error.
Ockington & Kibbee, for defendant.
After the jury had been charged with this case, and had been out all night, the court recalled them and asked them about what they differed; and being answered, about a question of fact in respect to the testimony of a witness, court had that witness recalled, and permitted the jury to ask him "whether the Hawkinsville Bank & Trust Company had any interest in the note sued on?" To which the witness replied, "that it had not a particle." The foreman then asked, "had the bank any interest at the time of suing out this attachment?" To which the witness replied, "that it had none whatever." This was all done over defendant's *objection. Defendant, now plaintiff in error, then proposed to cross-examine the witness, which was refused; and then to introduce other evidence on the point of interest in the bank, which was also refused.
This course pursued by the presiding judge, is assigned for error.
1. We think that the court erred. It would be a most dangerous practice, after argument had closed, and the charge on the law of the case, as applicable to the facts proven, had been given, to permit a witness to add to, or vary, or explain, or repeat, his testimony.
In this case, the court certifies that it only intended to elicit from the witness what he had testified before; but certainly, the questions propounded by the jury were not confined to that. If they had been, it would have been error, in our judgment; but the questions here asked were as to a fact, without regard at all to what the witness had before sworn, and the answers were substantive and distinct facts, without respect to the prior testimony of the witness, which was clear and manifest error.
2. After this had been allowed, the defendant below was not permitted to cross-examine at all, which was a still greater...
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