McBride v. Johns

• Decision Date: 11 January 1946
• Docket Number: 31099.
• Citation: 36 S.E.2d 822,73 Ga.App. 444
• Parties: McBRIDE v. JOHNS.
• Court: Georgia Court of Appeals

36 S.E.2d 822

73 Ga.App. 444

McBRIDE v. JOHNS.

No. 31099.

Court of Appeals of Georgia, Division No. 2.

January 11, 1946

Rehearing Denied Feb. 8, 1946.

Syllabus by the Court.

1. The exclusion from evidence of the power of attorney shows no reversible error.

2. An objection to evidence as irrelevant, immaterial and prejudicial, without more, is too general, and was properly overruled.

3. The trial court has the right within its discretion to re-open a case on trial at any time for the introduction of additional evidence, and this discretion will not be disturbed unless it is manifestly abused.

4. Grounds of a motion for new trial complaining of the refusal of written requests to charge should show that the matters requested were not substantially covered by the general charge.

5. The extracts from the charge, as complained of, were not erroneous.

6. It is irregular and improper for the court to receive a written note from the foreman of the jury during the trial of a case, without disclosing in open court upon request of counsel its contents; but such irregularity does not require a new trial unless it appears that the complaining party was injured thereby.

7. The exceptions pendente lite are without merit.

8. The burden of proof is on one objecting to the discharge of an executor from the administration of an estate.

(a) The superior court may apply eqquitable principles in settling accounts of executors on an appeal from the court of ordinary.

9. The special grounds showing no reversible error, and the evidence authorizing the verdict, the court did not err in overruling the motion for new trial.

H J. McBride, of Tallapoosa, for plaintiff in error.

D B. Howe, of Tallapoosa, and C. V. Driver, of Bremen, for defendant in error.

PARKER Judge.

Dr. L. J. Johns, as executor of the last will and testament of his mother, Mrs. Mary Johns, deceased, made application for letters of dismission from his administration of the estate. Mrs. Ruth McBride, a sister of Dr. Johns, they being the sole beneficiaries and legatees, in equal shares, under the will of their mother, filed objections to the discharge on the ground that 'he (the executor) has not fully administered said estate, and has not collected the debts due said estate, and being indebted himself to said estate has not paid or accounted for said sums that he owes said estate.' Mrs. McBride asked that a full and complete accounting be had between her and the said executor, and that such accounting be made by the court so that her rights might be determined. By agreement the case was appealed to the superior court. It was then tried and a verdict in favor of Dr. Johns, 'with the understanding that all indebtedness involved in tax receipts or other claims against Mrs. McBride's property (held) by Dr. Johns be cancelled,' was returned by the jury. Mrs. McBride made a motion for a new trial. It was amended by the addition of a number of special grounds. She excepts in this court to the overruling of her motion for new trial as amended, and by pendente lite exceptions to certain rulings of the court on demurrers filed and on motions made by her.

1. The first special ground of the motion for new trial fails to show error. The ruling of the court excluding the power of attorney from the evidence was not erroneous for any reason appearing in this ground.

2. Grounds 2, 3 and 4 complain of the admission of certain evidence therein set out, the only objections urged being that the same was irrelevant, immaterial and prejudicial. An objection to evidence as 'irrelevant and immaterial' is too general and is insufficient to present anything for the consideration of the reviewing court. Brown v. Salter, 59 Ga.App. 579, 581(4), 1 S.E.2d 468; Laney v. Barr, 61 Ga.App. 145, 6 S.E.2d 99; Atlanta Enterprizes, Incorporated v. James, 68 Ga.App. 773(2), 24 S.E.2d 130. Merely adding to an objection, otherwise insufficient, that the evidence offered is 'illegal' or 'prejudicial' or 'inadmissible' does not make such an objection sufficient without showing to the trial court wherein the testimony was illegal, prejudicial or inadmissible. See Barrett v. City of Brunswick, 56 Ga.App. 575, 577, 193 S.E. 450.

3. 'The trial judge has a right to reopen a case at anytime for the introduction of additional testimony, and this discretion will not be disturbed unless manifestly abused.' Jackson v. Georgia Railroad & Banking Co., 7 Ga.App. 644(4), 67 S.E. 898, 899; Metropolitan Life Ins. Co. v. Hand, 25 Ga.App. 90, 102 S.E. 647. There was no error in re-opening the case for the introduction of additional evidence and in admitting the tax receipts and executions over the objection that the transfers on the executions to Dr. Johns had not been proved. There was other evidence to the effect that Dr. Johns had paid taxes for Mrs. McBride over a period of several years, and whether or not the tax executions paid by him were transferred to him was immaterial in the light of the testimony as a whole.

4. Grounds 6, 7, 8, 9 and 10 of the amended motion complain of various requests to charge made by counsel for Mrs. McBride. It does not appear in either of these grounds that the several requests as submitted were not substantially covered by the general charge given by the court. For these reasons these assignments fail to show error. Perdue v. State, 17 Ga.App. 299(1), 86 S.E. 661; Dixon v. Evans, 56 Ga.App. 583(2), 193 S.E. 470.

5. Grounds 11, 12, 13, 14, 15 and 16 all complain of extracts from the charge of the court. The charges objected to in these grounds related to the contentions of the parties; the duties of executors in the administration of estates; the rule that a testator may, by will, relieve his executor of making returns; the form of the verdict and the burden of proof. It would unduly prolong this opinion to set the excerps out in extenso. We do not think either of these grounds shows error. They have all been considered in connection with the charge as a whole, and they are not subject to the criticisms made in the assignments of error.

6. The 17th and final special ground of the motion complains of an incident that took place during the trial. After the jury had deliberated for a time they came back into the court room and the following colloquy took place:

'The Court: Mr. Foreman, I received your note with reference to what would be the situation between these parties under certain circumstances which you understand. The court's construction of the verdict would be that when you settle all matters between these particular parties, counsel for the executor agrees that that would be the effect of it.

'Mr. McBride (counsel for plaintiff in error): I don't agree to it.

'The Court: For the executor, I said.

'Mr. McBride: If he agrees to it, probably it would, but under the law----

'The Court: I have not made any statement about any agreement. I am just answering the question the foreman submitted to me.

'Mr. McBride: I make the suggestion that the question be made part of the record, so we can understand what it is about. You have the written question there.

'The Court: I stated that whatever the message sent to me by the foreman was, they understand it. You will render such verdict in the case as you think is right, under the law that the court had given you in charge, and I charge you as a matter of law that all matters put in evidence between the parties would be settled as to such parties in whatever...