Loe v. Brown
| Decision Date | 13 February 1923 |
| Docket Number | 3138. |
| Citation | 116 S.E. 309,155 Ga. 24 |
| Parties | LOE ET AL. v. BROWN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
All motions for continuance are addressed to the sound discretion of the court, and rulings of the trial judge upon such motion will not generally be reversed by a reviewing court, unless this discretion has been abused.
(a) In an action of ejectment in which the defendants relied primarily upon a deed from the plaintiff, as a muniment of title, the plaintiff had the right, in rebuttal, to attack such deed in any manner authorized by law; and therefore he had the right to show that such deed was invalid or void, and the fact that the defendant was surprised that the form of attack was different from that expected would not require a continuance of the case. Furthermore, the trial judge did not abuse his discretion in the present instance, because there was evidence upon the hearing of the motion for a continuance which would have authorized the court, in passing upon the motion, to find that the defendants were informed (or by the exercise of due diligence could have known) the precise contention of the plaintiff as to the invalidity of their title.
(b) Under the evidence presented to the trial judge on the hearing of the motion for a continuance, the court did not abuse his discretion by refusing to withdraw the case from the jury and continue the case.
The introduction of immaterial evidence, unless it is harmful, is not a good ground of a motion for a new trial. And a motion to exclude en bloc certain testimony as a whole need not be sustained if a portion of the evidence sought to be excluded is admissible.
Where a borrower executes to a lender a deed to secure a particular specified indebtedness, a subsequent indebtedness is not secured thereby, in the absence of a stipulation to that effect in the deed, unless there is a subsequent written agreement that such indebtedness shall be secured thereby the latter agreement in writing is indispensable to enlarge the rights of the lender, and is a valid obligation as between the parties, though it might not affect the intervening rights of third persons.
Though there are a few immaterial verbal inaccuracies in the charge of the court, when the entire charge is read and considered as a whole, it must be held to be a clear and impartial presentation of the law of the case, and free from error.
(a) It is plain that the fact that the judge at one time referred to the Glynn County Bank as one of the defendants was due to inadvertence, and that the use of the name of that particular bank was a mere inaccuracy which could not have misled the jury, or prejudiced any of defendants' rights, especially in view of the fact that another bank, which had taken over all the rights of the Glynn County Bank, as well as its liabilities, is named as one of the defendants. Lothridge v. Varnadore, 140 Ga. 131 (2) et cit., 78 S.E. 721.
(b) The contentions of the defendants were presented with sufficient fullness, in the absence of a timely written request for a more specific and particular reference to such contentions. Where a party desires amplifications of his contentions to be presented to the jury, he should present a timely written request therefor.
In the absence of a proper written request, the court did not err in omitting to refer specifically to the documentary evidence introduced in the case, and in not differentiating between the oral testimony and the documentary evidence. The court in the general charge fully and fairly referred to the testimony as a whole. There was no written request for instructions upon the subject of documentary evidence; nor does it appear upon a review of the charge as a whole, that the defendants were injured by the omission of which complaint is made.
The court submitted to the jury and sufficiently instructed them as to the material contentions insisted upon by the defendants, and plainly stated the issue raised by the plaintiff's testimony. If presentation of each specific point and reference to the particular evidence in support of such point were desired, such specific and particular instructions should have been requested.
The request that the judge charge the jury the rule laid down in the Civil Code of 1910, § 4537, to wit, that "when one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury must bear the loss," was inapplicable in the present case; and for this reason the trial judge properly declined the request for instructions. For the same reason the court properly declined to charge as requested and in immediate sequence, as follows: "And so in this case I charge you that if you find either the plaintiff or the defendant must suffer by reason of any unauthorized act of any other person, and if you find that it was the plaintiff who made it possible for such other person to do the unauthorized act, and that plaintiff and defendants both were innocent, any loss arising out of such unauthorized act would properly fall on plaintiff."
Additional Syllabus by Editorial Staff.
Credibility of witnesses introduced on hearing on motion for new trial is entirely a matter for the trial judge.
Recording of deed merely permits introduction, without proof of execution, and does not exclude attack thereon on ground that it was incomplete when signed.
Defendants, who asked continuance because surprised by plaintiff's attack on deed as not complete when signed, must be presumed to have known that recording did not render the document immune from attack on other grounds than forgery.
Defendants in ejectment cannot complain of court's deduction from the amount found to be due plaintiff as mesne profits, though there was nothing in the pleadings on the subject.
The judge may instruct the jury in some instances as to matters admitted in open court, though not referred to in the pleadings.
Error from Superior Court, Brantley County; J. I. Summerall, Judge.
Action by E. L. Brown against Clarence Loe and others. Judgment for plaintiff, and defendants bring error. Affirmed.
F. M. Scarlett, Jr., and Bennet, Twitty & Reese, all of Brunswick, for plaintiffs in error.
Wilson & Bennett and Parker & Parker, all of Waycross, for defendant in error.
In this case the defendant in error who will be hereafter called the plaintiff, brought an action in ejectment against Clarence Loe, E. Balsom, J. F. Bennett, B. A. Bennett, Edward L. Stephens, Fred. E. Decker, and the Brunswick Bank & Trust Company, to recover 410 9/10 acres of land in formerly Wayne, now the new county of Brantley. The defendants relied upon a security deed made by the plaintiff himself, two subsequent conveyances, the one from the Glynn County Bank, acting under a power of sale to the Glynn County Bank, and the other a deed from the Glynn County Bank to Fred. Decker and E. L. Stephens, who later conveyed the land to Loe. The jury returned a verdict in favor of the plaintiff as follows:
The plaintiffs in error, hereafter referred to as the defendants, filed this bill of exceptions to the judgment of the trial judge in refusing a motion for a new trial. One of these grounds was an assignment of error upon the refusal of the court to grant a motion for a continuance. We shall first address ourselves to this ground of the motion; because, if the court erred in not granting the continuance, all of the subsequent proceedings in the trial become nugatory, and it will perhaps be unnecessary for us to deal with any of the other grounds of the motion for a new trial.
1. The motion for continuance was not made when the case was called upon the docket, and not until the plaintiff had rested on his prima facie case and the defendants had closed. But this fact, as we view it, is not material in the consideration of the question presented. The real question is whether the court erred in overruling the showing as made, without regard to when the showing was presented, and even conceding that the same showing had been made at the beginning of the trial. By this we mean that if a showing upon the same grounds had been made at the beginning of the trial, would the court, in the exercise of a sound discretion, have been required to continue the case? The real point presented was whether the court should continue the case by reason of the fact that the defendants were surprised to know that the plaintiff was going to claim that the deed upon which they relied as a muniment of title was void by reason of the fact that the plaintiff had not signed the paper in its complete form at the time he delivered it, but had allowed another to prepare and fill in all of the substantial part of the conveyance in his absence. As all motions for continuance are addressed to the sound discretion of the court, rulings of the court upon such motions cannot generally be reversed by a reviewing court, unless the discretion of the court has been abused; and therefore the question presents itself in another form, to wit, Was the discretion of the court in the present instance abused? The court heard testimony from both parties upon the motion to continue. The record shows, in substance, the following facts: The defendants thought that they were prepared to defend against an affidavit of forgery, if it should be presented, because it is stated in the showing that they had witnesses who would swear that they saw the plaintiff sign the paper; also because the form of the original instrument in the possession of one of ...
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