Parker v. Chambers

• Decision Date: 31 January 1858
• Citation: 24 Ga. 518
• Parties: Robert Parker et al, plaintiffs in error. vs. James M. Chambers, defendant in error.
• Court: Georgia Supreme Court

24 Ga. 518

Robert Parker et al, plaintiffs in error. vs. James M. Chambers, defendant in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1858.

Trover, and New Trial, from Muscogee county. Before Judge Worrill,, November Term, 1857.

This was an action of trover, brought by Robert Parker, and others, against James M. Chambers, for the recovery of certain negroes named in the declaration.

Upon the trial, the plaintiffs introduced (inter alia) the following testimony:

1st. The will of J. Christopher Pritchett, dated the 21st of October, 1807, by the 2d item of which the testator lent unto his daughter, Chloe Parker, during her natural life, one negro woman, Maria, and 4 children, namely, Jim, Dan, Mary, and Aggy, together with her future increase, and at her death, the said Maria and her increase were to be equally divided amongst the children of his said daughter Chloe, lawfully begotten of her body.

To the admission of this will the defendant objected. The Court overruled the objection, and admitted the same as evidence.

2d. The answers of Sally Sullivan to a set of interrogatories, to the following effect: That she thought the negroes in question were loaned to John Parker and Chloe Parker; that she was sent by her mother, at the direction of her father, to tell John and Chloe Parker to send the negroes home. Chloe Parker and herself were half-sisters. In answer to cross-interrogatories, the witness stated that John and Chloe Parker were married nearly 54 years ago, and went to housekeepingshortly after their marriage; that she thought the negro were loaned to them shortly after they went to housekeeping they remained in North Carolina 16 or 17 years after the came into possession of the negroes.

3d. The plaintiffs also read in evidence the answers of Sally Sullivan to a 2d set of interrogatories, to the following pur port: That the reasons which induced her belief that the negroes in controversy were loaned by her father, Christopher Pritchett, to Chloe Parker were, that the negroes were permitted to go into the possession of John and Chloe Parker at their marriage, and that she was sent at the instance of her father to John Parker's house, to tell him or Chloe Parker to send the negroes home; that she told either John or Chloe Parker her father's request, and the negroes were sent home immediately, and after staying a short time at her father's, they were sent back again to John Parker's; that her father was a particular man, and required John Parker to send home the negroes every year to stay a short time, and then her father would send them back; never heard John Parker say that her father had a right to control the negroes, but she judged from his acts that he admitted it. Upon one occasion her father took the control by having the negro woman Maria whipped, and said he did it as he did not wish to pay costs, and to this John Parker did not object.

In answer to cross-interrogatories the witness stated, that John Parker did not have possession of the negroes till some considerable time after the marriage.

To the admission of the answers to the 2d set of interrogatories, the defendant objected. The Court overruled the objection, and admitted the same in evidence.

During the progress of the trial, the plaintiffs moved to strike out the names of two of the plaintiffs, viz.: John and Susan Woods. The defendant objected. The Court allowed the names of those plaintiffs to be struck out.

4th. The plaintiffs then introduced as a witness, the defendant, James M. Chambers, who testified, that he had thenegroes (specifying them and their value) in his possession and claimed them as his own; that he obtained them from Archibald McCoy; Mary by purchase, Jim under the will of McCoy; all the rest are the descendants of Mary; got the negroes from McCoy about the year 1822; McCoy bought Jim and Mary from John Parker between 1818 and 1822; remembered when they were brought home after the purchase; the Parker family remained in the neighborhood many years after the purchase.

The jury found for the plaintiffs $13,500, to be discharged by the delivery of the negroes within thirty days; and the further sum of $7,500 for hire.

Whereupon, defendant moved for a new trial on the following grounds:

1st. Because the Court erred in refusing to suppress the depositions of Sally Sullivan on her second and last examination.

2d. Because the Court erred in admitting in evidence (the defendant objecting thereto) the opinions of Sally Sullivan, as disclosed in the brief of evidence.

3d. Because the Court erred in admitting in evidence (the defendant objecting thereto) proof by Sally Sullivan of the general character of her father, as disclosed in the brief of evidence, and in admitting all that portion of the evidence of Sally Sullivan that was objected to by defendant on the trial.

4th. Because the Court erred in permitting the plaintiffs, in the progress of the trial, to strike out the names of John Woods and Susan Woods, and the cause to proceed in the name of the other plaintiffs.

5th. Because the Court erred in charging the jury, that if any of the children of Chloe Parker died before she died, that the right to the whole property, if any, vested in the surviving children of Chloe Parker upon her death.

6th. Because the Court erred in charging the jury, that unless the plaintiffs knew, at the time Chambers purchased the negroes, that they were remaindermen under the will, thattheir subsequent silence or failure to make known their claim, though within their knowledge claimed in fee simple by Chambers, did not operate as a waiver of their right, nor were they thereby estopped from asserting the same.

7th. Because the Court erred in refusing to charge the jury, that they might infer knowledge on the part of the plaintiffs, or any one of them, from their conduct, and the circumstances shown by the evidence.

8th. Because there was no evidence submitted to the jury showing that the executors to the will of Pritchett, if any, ever assented to the legacy of Chloe Parker and her children.

9th. Because the jury found contrary to law and the charge of the Court.

10th. Because the verdict was without evidence, and contrary to the evidence.

11th. Because the verdict was contrary to the weight of evidence.

12th. Because the Court erred in charging the jury, that in order to enable them to find, that the plaintiffs or any one of them, had waived their title to the property in controversy, or were estopped from asserting it, they must be satisfied that such plaintiff was 21 years old at the time of said alleged waiver, or of said alleged estoppel, and had actual and personal knowledge of their right or claim to said property, as contained in said will of Christopher Pritchett; and in charging them further on this point, that it devolved on the defendant to make the proof of these several facts to the satisfaction of the jury.

13th. Because the Court erred in admitting in evidence, the will of Christopher Pritchett, in the absence of evidence that the said testator had such claim, right or title to the negroes in controversy, as authorized the disposition of the same by will or otherwise.

14th. Because of newly discovered evidence since the trial, &c.

In support of the 14th ground, as mentioned, the defendantmade an affidavit to the effect, that since the trial he had discovered new and important evidence, set out in the affidavits of L. Fletcher and Spencer Sullivan, and that if he had known the same at the trial, he would have had those witnesses present in Court, and have moved to suppress the evidence of Sally Sullivan.

Spencer Sullivan's affidavit was to the effect, that he was present in the room when the answers of Sally Sullivan were taken, and that Christopher Parker and Robert Parker were present in the room during a part or the whole of the time.

Wm. L. Fletcher, by his affidavit, stated that he acted as one of the commissioners in taking the answers of Sally Sullivan; that Kitt Parker desired him to act as a commissioner in taking the answers of Sally Sullivan, and that he agreed to do so; that Kitt Parker introduced him to the witness; Kitt Parker and deponent both propounded questions to her, and interrogated her as "to the loan of the negroes;" that he proceeded to write down the answers of the witness, and at the same time Kitt Parker walked out upon the piazza; that while he was taking down the answers of witness, he saw Kitt Parker several times on the piazza, and the witness must have seen him; Kitt Parker was in such a position as to have been able to hear the testimony of the witness; that the witness had displayed in a wonderful degree, her powers of tedious narrative, and that he had, in taking down her evidence, "sifted the chaff from the wheat."

Upon hearing the rule nisi, the Court granted the new trial, and to this decision plaintiffs excepted.

Jones & Jones, for plaintiffs in error.

Holt & Hutchins; Hill; Dougherty; Wellborn. Johnson & Sloan, for defendant in error.

Judge Benning having been formerly of counsel in this case, did not preside.

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

The presiding Judge in the Court below granted a new trial in this cause, and his decision granting the new trial is assigned for error.

Mrs. Sally Sullivan, a witness for the plaintiffs, had answered two sets of interrogatories. The counsel for the defendant moved, at the trial, to rule out the depositions last taken. The Court overruled the motion, and the refusal of the Court to suppress that evidence, is male a ground for a new trial. There can be no legal objection to a second examination of a witness by commission, for the purpose of explaining evidence before given, or of testifying to additional facts.

The rule in respect to the admission in evidence of the opinion and belief of a witness has been relaxed in some cases, and such testimony has been admitted, provided the...