Martin v. Martin

• Decision Date: 10 July 1935
• Docket Number: No. 10516.,10516.
• Citation: 180 Ga. 782,180 S.E. 851
• Parties: MARTIN v. MARTIN et al.
• Court: Georgia Supreme Court

180 Ga. 782

180 S.E. 851

MARTIN

v.MARTIN et al.

No. 10516.

Supreme Court of Georgia.

July 10, 1935.

Syllabus by the Court.

1. The charge assigned as error in the first special ground of the motion for new trial does not show harmful error.

2. The same is true of the excerpt in which the court made reference to the "deed of gift" made when the husband was insolvent, or if, when made, it rendered him insolvent. It appeared, without dispute, that the deed was not a deed of gift, and also that the grantor was insolvent. The charge was thus inapplicable, but the plaintiff, as losing party, was not prejudiced thereby.

3. The court did not err in refusing to charge in its entirety section 28-201 of the Code of 1933. The first subparagraph of this section was inapplicable.

4. The court properly refused to give the instruction contained in the written request referred to in ground 4. This instruction would have invaded the province of the jury, and would have placed an unwarranted burden upon the defendants.

5. Defendants, having introduced no evidence, were entitled to the opening and conclusion of the argument, as ruled by the trial judge. This is true though one of the defendants called by the plaintiff for the purpose of examination was, while on the stand, interrogated by defendant's attorney.

6. The evidence authorized the verdict, and the court did not err in refusing a new trial.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Suit by Mrs. Clara Martin against D. O. Martin, Sr., and others. To review the judgment, after her motion for a new trial was overruled, plaintiff brings error.

Affirmed.

Watkins, Grant & Watkins and Mitchell & Mitchell, all of Atlanta, for plaintiff in error.

James K. Rankin and Hewlett & Dennis, all of Atlanta, for defendants in error.

HUTCHESON, Justice.

Mrs. Clara Martin filed her petition for permanent alimony against D. O. Martin, Sr., and against D. O. Martin, Jr., John Wesley Martin, and Mrs. Ruby Adair, children of D. O. Martin, Sr., by a former marriage. She alleged that D. O. Martin, Sr., and his said children entered into a conspiracy, the purpose of which was to divest him of all his property and thus defeat any claim she might have for support and maintenance; that he made to each of said children a deed to certain property, reciting a consideration of love and affection and $10, but that these deeds were in fact voluntary conveyances; and she prayed that they be decreed null and void and be canceled. D. O. Martin, Sr., filed an answer denying the allegations of the petition. He admitted making the deeds, but alleged that they were not made for the purpose of defrauding his wife or any one else, and were made for a valuable consideration, in that the $10 was actually paid in each case, and that the grantee in each instance assumed payment of incumbrances on the property. The children also filed an answer, denying any conspiracy as charged.

Upon the trial the petitoner was given a stated monthly amount as permanent alimony, but the jury found against the setting aside of the deeds. The petitioner made a motion for new trial, which was overruled, and she excepted.

1. The charge to the jury, as complained of in the first special ground of the motion for new trial, was erroneous in the abstract, because it placed upon the plaintiff a burden greater than that imposed by law, in that it required her not only to prove that the deeds were made with intent to defraud, but that such intention was known to the grantees or they had reasonable grounds to suspect it. But the jury were further instructed that before such cancellation could be had, it must appear that the husband...