Moody v. Davis

• Decision Date: 31 August 1851
• Docket Number: No. 56.,56.
• Citation: 10 Ga. 403
• Parties: Wm. Moody and wife, plaintiffs in error. vs. Lewis Davis, defendant in error.
• Court: Georgia Supreme Court

10 Ga. 403

Wm. Moody and wife, plaintiffs in error. vs. Lewis Davis, defendant in error.

No. 56.

Supreme Court of the State of Georgia

AUGUST TERM, 1851.

In Equity, in Crawford Superior Court. Tried before Judge Stark, February Term, 1851.

The bill charges that previous to the intermarriage of the complainants in 1848, unfortunate difficulties, disagreements and disputes, had arisen between Lewis Davis, the defendant, (and the father of Mrs. Moody, one of the complainants,) one Baldwin M. Fluker, and Mrs. Moody, then Miss Davis, concerning grievous injuries and wrongs inflicted by the said Baldwin M. upon Mrs. Moody, the complainant; that for the purpose of effecting a compromise and adjusting the difficulties, and making compensation for the wrong and injury done the complainant, Mrs. Moody, the said Baldwin M. in 1843, turned over to Davis, the defendant, a negro man, named Squire, of the value of $600 00, together with good notes amounting in the aggregate to $400 00, to have and to hold the same for the use and benefit of Mrs. Moody, one of the complainants, and the said Davis then and there promised and agreed faithfully to execute said trust. The bill further alleges, that previous to the intermarriage of complainants, the defendant, as an inducement thereto, led complainant, Moody, and others in the community, to believe, and gave them to understand, that the said property belonged to his daughter, now Mrs. Moody. The bill prayed that the defendant be decreed to come to an account with complainants, and pay over to them the value of said property.

The defendant in his answer, admitted the wrongs inflicted upon his daughter, Mrs. Moody, by Fluker, but denied that the property was turned over to him in trust for her, but on the contrary, that Fluker had paid it to defendant in satisfaction of his claims upon Fluker for debauching his daughter—who at the time was under 21 years of age.

The cause came on to be tried on the appeal, at February Term, 1851, when counsel for complainants moved to continue the case on the showing of complainants' counsel, to the effect " that Baldwin M. Fluker was a material witness, and would prove that the property was turned over by him to defendant, for the use and benefit of Mrs. Moody; that interrogatories had been sued out more than a year ago and sent to Franklin, State of Alabama, which was then believed to be the residence of wit-ness; that upon their receipt, Jones and Caruthers, the persons to whom they were sent, notified complainants\' counsel of Fluker\'s previous removal, just before the August Term of the Court, 1850, and too late for counsel to forward the interrogatories and have them executed for that Term of the Court; that they believed Fluker was still in life, but had been able only to learn the Parish in the State of Louisiana, in which he lived, and that they hoped and expected to procure his testimony by the next term of the Court." The motion to continue was overruled by the Court, and counsel for complainants excepted.

Counsel for complainants offered in evidence the testimony of William M. Brown, taken by depositions.

To the answer of Brown to the second interrogatory, which read as follows: —" I was present at a settlement between Baldwin M. Fluker and defendant; I was present when the negro and notes, amounting in value to $1000 00, were turned over; the contract was made at Hootensville, Upson County; I was previously called on by both parties, Davis and Fluker, to meet them there for the purpose of compromising a difficulty that existed between them; the contract, I understood, was to satisfy Davis for Fluker's treatment to his daughter Frances; the understanding was that Davis should pay himself out of the said amount for his trouble and expense, the balance to go to his daughter Frances"—counsel for defendant objected, upon the ground that Brown was a referee, and that he proved that the property was given to a stranger. The Court overruled the objection, but suggested an exception to said answer, viz: that Brown stated that " the understanding was, &c." it being the opinion of the Court, that if this was " the understanding" of the witness, it was inadmissible; and if it was the thoughts or opinions of others, it was equally inadmissible, and so the Court rejected the evidence; whereupon counsel for complainants again moved the Court to continue the case. The Court overruled the motion and dismissed the bill, and counsel for complainants excepted, and upon these exceptions have assigned error.

S. & R. P. Hall, for plaintiffs in error.

G. R. Hunter, for defendant in error.

By the Court.—Nisbet, J. delivering the opinion.

The showing for a continuance was not sufficient; it was a question of diligence, and the rule of Court for the execution and return of commissions had nothing to do with it; the plaintiff in error had not used proper diligence to get the testimony of the witness, Fluker. One year preceding the term at which this continuance was applied for, a commission to examine the witness had been taken out and forwarded to Franklin, Alabama, and solicitors for the complainants were informed that he had removed from Alabama. This information was received too late to procure his testimony for the term then next following, to wit, at the August Term, 1850, and on that account the cause was continued, at the instance of the complainants, at that Term. The solicitors for the complainants further showed, that they believed Fluker was still in life, but that they had only been able to learn the Parish in the State of Louisiana, in which he lived, and that they hoped and expected to procure his testimony by the next term of the Court. This continuance was asked at the February Term, 1851. It appears then, that the cause had been once continued on the appeal for the want of Flicker's testimony, by the complainants, and that six months had intervened between that continuance and the present application; and that within that time no effort had been made to get his testimony, except that counsel had continued to make inquiry as to his residence. It was admitted that they had learned the State and Parish in which he resided; they should have sued out a commission and forwarded it to that State and Parish at least. That they did not do. The cause had been delayed for six months already, and if continued again, would have been delayed for twelve months, on account of this testimony. It was a case for more than ordinary diligence. We cannot say that the parties within the preceding six months, had used even ordinarydiligence. This is not a case in which we feel authorized to interfere with the discretion of the presiding Judge in refusing a continuance.

The Court erred, we think, in ruling out the testimony of the witness Brown. The bill was filed by Moody and his wife, to recover certain property which it charges was delivered to the defendant, Davis, in trust for his daughter, Mrs. Moody, by Fluker, in consideration of outrages perpetrated by him upon Mrs. Moody. The witness, Brown, was called by the complainants to prove that the property was delivered to Davis for the use of his daughter; he swears, upon examination by commission, that he was present at a settlement between Baldwin M. Fluker and the defendant; was present when the negro and notes, amounting in value to $1000, were turned over to Davis. The contract was made at Hootensville, Upson County; was previously called on, by both parties, to meet them there for the purpose of compromising a difficulty that existed between them; the contract, (says the witness) I understood, was to satisfy Davis for Fluker's treatment to his daughter Frances. The understanding was that Davis should pay himself out of the said amount for his trouble and expense, the balance to go to his daughter Frances. The part of the testimony last stated and underscored, the presiding Judge ruled out, upon the ground that the witness testified that the understanding was, &c. The reasons given by the Judge for this ruling are, that if the understanding spoken of was the understanding of the witness, it was inadmissible, and if it was the thoughts or opinions of others, it was equally inadmissible.

If the witness intended to express his own understanding—as if he had said, my understanding was, &c.—I am myself satisfied that the testimony was admissible. He had been called upon to witness the settlement between these parties; he saw and heard what transpired, and testified to the fact that the negro and notes were turned over by Fluker to Davis; he stated that he understood that the contract was to satisfy Davis for Fluker's treatment of his daughter Frances; if then he had added my understanding was, &c. I should hold that he would be understood asstating his comprehension of what the contract was, which he had already proven. Comprehension is one of the synonimes of understanding; and one of the meanings of the word understanding, by common usage is, the way in which we comprehend a contract or a proposition. With such a meaning to the word, where is the difference between saying the contract was, &c. and saying my wider standing...