Mckoy v. Enterkin

• Court: Georgia Supreme Court
• Writing for the Court: BELL, Justice
• Citation: Mckoy v. Enterkin, 181 Ga. 447, 182 S.E. 518 (Ga. 1935)
• Decision Date: 15 November 1935
• Docket Number: No. 10952.,10952.
• Parties: McKOY. v. ENTERKIN.

181 Ga. 447

182 S.E. 518

McKOY.

v.ENTERKIN.

No. 10952.

Supreme Court of Georgia.

Nov. 15, 1935.

Syllabus by Editorial Staff.

RUSSELL, O. J., and ATKINSON, J., dissenting.

Error from Superior Court, Douglas County; J. R. Hutcheson, Judge.

Suit by Thad M. McKoy, administrator, against W. F. Enterkin. Judgment for defendant, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Reversed.

D. S. Strickland, of Douglasville, for plaintiff in error.

Astor Merritt, of Douglasville, for defendant in error.

Syllabus Opinion by the Court

BELL, Justice.

1. In a suit for land by an administrator, the defendant contended that the intestate, his mother, had agreed for him to have the land at her death, in consideration of his paying a stated debt against her. The plaintiff contended, on the contrary, that the defendant had paid the debt solely in consideration of his receiving from the estate of his father, previously divided by agreement, a tract of land more valuable than the shares awarded to the other heirs. Held that evidence as to relative and greater value of the tract conveyed to the defendant by the other heirs in such division was relevant, being corroborative of the contention of the plaintiff; and the court erred against the plaintiff in excluding such evidence. For this reason, the jury having found for the defendant, the plaintiff's motion for a new trial should have been sustained. Stone v. State, 118 Ga. 705 (7), 45 S. E. 630, 98 Am. St. Rep. 145; Summerford v. Davenport, 126 Ga. 153 (2), 54 S. E. 1025; Bedingfield v. First National Bank, 4 Ga. App. 197 (4), 61 S. E. 30.

2. The rule that a party who complains of the rejection of oral testimony must show that the court was informed as to what the witness would answer (Griffin v. Henderson, 117 Ga. 382 [2], 43 S. E. 712), does not apply to cross-examination (Bell v. Felt, 119 Ga. 498, 46 S. E. 642; Dyar v. Dyar, 161 Ga. 615, 131 S. E. 535; Gilpin v. State Highway Board, 39 Ga. App. 238, 146 S. E. 651).

3. The grounds of the motion for a new trial assigning error on the rejection of the evidence as to value, which the plaintiff sought to elicit on cross-examination, weremeritorious, but none of the other special grounds showed error.

4. Since the case must be tried again, no ruling will now be made as to the sufficiency of the evidence to support the verdict.

Judgment reversed.

All the Justices concur, except RUSSELL, C. J., and ATKINSON, J, who dissent