Mcelmurray v. Turner

• Decision Date: 21 November 1890
• Citation: 86 Ga. 215,12 S.E. 359
• Parties: McElmurray. v. Turner.
• Court: Georgia Supreme Court

86 Ga. 215

12 S.E. 359

McElmurray.

v.Turner.

Supreme Court of Georgia.

Nov. 21, 1890.

Evidence at Former Trial—Laborer's Lien.

1. Testimony given at a former trial by a witness not shown to be dead, or beyond the jurisdiction of the court, is not admissible against the one by whom he was sworn, though his testimony was then acquiesced in, and not contradicted, the facts sworn to not being in the personal knowledge of the party by whom the witness was introduced.

2. A "cropper" having furnished the labor, and raised a crop on shares, the owner of the land furnishing the stock, and retaining control of the crop until his rent and advances were paid, the "cropper" may recover her share by foreclosure of a laborer's lien, though she is a widow, and was aided in raising the crop by the work of her minor children, and by extra labor employed for a few days.

Error from superior court, Burke county; Ronky, Judge.

Phil P. Johnston, for plaintiff in error.

Lovett & Davis, for defendant in error.

Simmons, J. It appears from the evidence in this case that McElmurray and Rena Turner, in the year 1889, made a contract whereby McElmurray was to furnish land, stock, etc., to Rena Turner, and she was to furnish labor, and make a crop on the land, and the crop was to be equally divided between them. The crop was made, and, in October or November of that year, McElmurray discharged Rena Turner, whereupon she sued out a laborer's lien against him, claiming a special lien upon the crop raised by her as a laborer. McElmurray filed a counter-affidavit against the foreclosure of the lien, upon several grounds, and the case was returned to the court to be tried. On the trial thereof in the superior court, the case having been appealed from the county court, the jury returned a verdict in favor of the plaintiff, and the defendant made a motion for a new trial, which was overruled, and he excepted.

1. The fourth and fifth grounds of the motion are, in substance, that the court erred in refusing to allow counsel for the defendant to prove by the plaintiff, after she had testified, that her brother, Henry Turner, was wagoner for McElmurray, and had hauled all her cotton to the railroad station; that, upon the trial of the casein the county court, she had introduced her said brother as a witness in her behalf; and that he there testified that the amount of cotton made in her crop was only 10 bales, except some scattered cotton, she having been present at the giving of this testimony, and assenting thereto. We think the court was right in refusing to allow the testimony: (1) Because it does not appear that Henry Turner, the witness who testified in the county court, was dead or inaccessible, and, if he was living and accessible, he ought to have been produced and sworn as a witness, and compelled to give his own testimony It was argued, however, that as the plaintiff had introduced Henry Turner as a witness in her behalf on the trial in the county court, and heard him testify, and assented to his testimony, this was in the nature of an admission in open court.

(2) We do not think this was such an admission on the part of the plaintiff as would have authorized the reception of the testimony. Our Code (section 3790) declares that acquiescence or silence, when the circumstances require an answer or denial, or other conduct, may amount to an admission. But, where a plaintiff or defendant introduces a witness in court, we do not think that the acquiescence or silence of the party during the progress of the trial would amount to an admission, the circumstances at that time not requiring an answer or denial. (3) As appears from this record, Rena Turner did not know of her own knowledge how many bales of cotton her brother had hauled to the railroad station. If she had known, it would not have been necessary to put her brother upon the stand to prove it. And, as she did not know it of her own knowledge, she could not be held bound on another trial by the testimony of a witness introduced on the former trial. Nor would she have been bound absolutely by his testimony on the trial at which she introduced him, as she would have been allowed to prove by other witnesses a different state of facts from that testified to by this witness. Cronan v. Roberts, 65 Ga. 678.

2. The sixth ground complains that the verdict is contrary...