Moss v. Moss

• Decision Date: 18 October 1917
• Docket Number: 5.
• Citation: 93 S.E. 875,147 Ga. 311
• Parties: MOSS ET AL. v. MOSS.
• Court: Georgia Supreme Court

93 S.E. 875

147 Ga. 311

MOSS ET AL. v. MOSS.

No. 5.

Supreme Court of Georgia

October 18, 1917

Syllabus by the Court.

This case was formerly before this court, and is reported in 144 Ga. 194, 86 S.E. 548. The decision in that case is controlling as to some of the questions raised in the present record. Certain acts and sayings of the son-in-law, Edwards to which objection was made, were held to be admissible when the case was here before, and assignments of error on admitting similar testimony are controlled by that decision.

Where on the trial of a suit brought by a wife against her husband to recover permanent alimony, and to cancel a certain deed executed by the husband to his daughter by a former marriage one of the main issues in the case was whether the execution of the deed by the defendant to his daughter was fraudulent it was error for the court to remark in the presence of the jury, on objection being made to an answer made by the defendant to the effect that the daughter agreed for the defendant to stay in possession of the land as long as he lived, that "it could only be admissible on one view of the question: That in the making of this deed, and allowing him to remain in possession, is prima facie as a badge of fraud; and he can explain his possession after the signing of the deed for the purpose of rebutting it." Such remark was an expression of opinion prejudicial to the defendant, and requires a new trial.

Where, on the trial of a suit for alimony, one of the issues was as to the conduct of the plaintiff in voluntarily abandoning her husband and home, it was not error, while the plaintiff was being examined by her counsel, for the court to allow her to testify, over objection, that: "Clarence Moss, who is a nephew of Mr. Moss, and lived a short distance away, and he came and told me this--the day before I left; and he said he had to rest three times to get there, he was so weak; and he told me that he knew from what he had heard Edwards say--he said, 'Aunt Katie, I have come to warn you of the danger you are in.' * * * He said that Edwards said he intended that I should leave that place at any cost." Such evidence was admissible, not as hearsay, but to explain the conduct of the plaintiff in leaving defendant's home. Civ. Code 1910, § 5763.

It was not error, on the trial of a suit for permanent alimony, to permit the plaintiff's counsel to ask the following question, and the plaintiff to answer: "On April 28th last year, 1915, the court made an order here requiring D. J Moss to pay you certain sums of money at various times. How much of it has he ever paid? A. Not one penny; not one." The plaintiff was undertaking to have canceled a certain deed executed by the defendant, conveying the only land he owned, in order to subject it to the payment of the judgments for temporary alimony and attorney's fees, and for permanent alimony, if the jury found it; and the...