Livingston v. Wynne
| Decision Date | 18 October 1917 |
| Docket Number | (No. 19.) |
| Citation | 147 Ga. 307,93 S.E. 877 |
| Parties | LIVINGSTON et al. v. WYNNE et al. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Dodge County; J. P. Highsmith, Judge.
Action by Mary Livingston and others against Lovett Brown (continued after his decease by his administrator, Bob Wynne) and others. Exceptions to auditor's findings in favor of plaintiffs submitted to the jury, who found verdict for defendants. Motion for new trial overruled, and plaintiffs bring error. Reversed.
W. L. Grice, of Hawkinsville, B. R. Calhoun, of Eastman, and Hall & Grice, of Macon, for plaintiffs in error.
Eschol Graham, of McRae, and Roberts & Smith, and W. A. Wooten, all of Eastman, for defendants in error.
HILL, J. Mary Livingston and others brought their action against Lovett Brown (since deceased, whose administrator, Bob Wynne, in his representative capacity, was made a party defendant) and others, praying that certain deeds be canceled, that the land conveyed thereby be decreed to belong to and vest in the plaintiffs, and that they recover the rents and the value of certain timber. The case was referred to an auditor, to hear and determine all issues of law and fact. The auditor filed his report, which was in favor of the plaintiffs. The defendants filed exceptions to the findings of fact by the auditor, which were submitted by the trial judge to a jury, who found a verdict in favor of the exceptions. The plaintiffs filed a motion for a new trial, which was overruled, and they excepted.
1. During the trial of the case, after the jury had been charged, and had retired to their room, counsel for the plaintiffs moved to declare a mistrial on account of alleged misconduct of two of the jurors in accepting hospitality, during the trial, from a brother of one of the defendants. It was stated by counsel that the two jurors went to the home of that defendant's brother, during the trial and after the jury had dispersed for the day, and ate supper therein. After supper they left, and spent the night in the jury room at the courthouse, and went back to the house of the brother of one of the defendants, and had breakfast with him there next morning. Movants' counsel offered to prove these statements, but was not allowed to do so by the court. Counsel for the plaintiffs then proposed that the two jurors be withdrawn, and that the trial proceed with the remaining jurors, which offer was declined by opposing counsel.
Error is assigned on the failure to declare a mistrial. No exception pendente lite was taken, and the facts just recited were setout in the motion for a new trial. This failure to hear evidence and to declare a mistrial can be taken advantage of in a motion for new trial, although no exceptions pendente lite were filed. It does not appear that at the time it was originally made the motion for mistrial was predicated upon the statement that the brother of the defendant had tallied to either or both of the jurors about the case while they were guests at his home; but it was based upon the ground that the jurors had accepted hospitality from the defendant's brother. However, in the colloquy between court and counsel, pending the motion for mistrial, the following occurred: Counsel for respondents stated, at the time the motion was being considered:
"The case was not discussed or mentioned at all while these jurors were at his home."
Counsel for movants replied:
The court then ruled:
Counsel for respondent then said:
"I don't think it would be amiss to have evidence on the point that the case was not mentioned and that they were invited down there."
The court responded:
Counsel for respondent then stated:
"If anything was said that would tend to...
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