Ramsey v. Ramsey

• Decision Date: 16 March 1932
• Docket Number: 8554.
• Parties: RAMSEY v. RAMSEY et al.
• Court: Georgia Supreme Court

163 S.E. 193

174 Ga. 605

RAMSEY v. RAMSEY et al.

No. 8554.

Supreme Court of Georgia

March 16, 1932

Syllabus by the Court.

Trial judge's entry of approval of grounds of amendments to motion for new trial held sufficient for review where judge had finally passed on merits and sufficiency of approval had not been questioned (Laws 1911, p. 150, § 3).

In suit against administrator, instruction on common-law marriage held sufficient in absence of exception or request for fuller charge.

Certified photostatic copies of letters claimed to have been written by deceased husband showing intervener was his common-law wife held properly rejected, together with ex parte affidavits of witnesses in another transaction and testimony of intervener as to genuineness of originals and copies, in suit against administrator (Civ. Code 1910, § 5858, par. 1).

In suit by purported heir against administrator for accounting refusal to permit counsel for intervener, claiming through common-law marriage, to open and conclude argument held not error, where intervener did not admit that plaintiff had prima facie case.

Defendant is not entitled to opening and conclusion of argument unless in his pleadings, and before plaintiff's introduction of evidence, defendant admits enough to make out prima facie case for plaintiff.

Grounds of motion for new trial which are not argued are deemed abandoned.

1. Where the order of the trial judge entered upon the amended motion for new trial was, "The grounds of the within amendments to the motion for new trial are hereby approved," this is a sufficient approval in order for such grounds to be considered by the Supreme Court since the act of 1911 (Ga. Laws 1911, pp. 149, 150, § 3), where the trial judge has finally passed on the merits of the motion for new trial and the parties have raised no question as to the sufficiency of the approval of the grounds of such motion.

2. While the evidence as to whether the intervener (plaintiff in error) was the "common-law wife" of Willie Ramsey deceased, was in sharp conflict, it was sufficient to authorize the verdict that she was not such common-law wife.

3. The charge of the court, as set out in division 3 of the opinion, was not erroneous for the alleged reason that in connection therewith the judge failed to instruct the jury that "a cohabitation, though illicit at the beginning, could nevertheless ripen into a common-law marriage if the parties so agreed and held themselves out as man and wife." If a charge fuller than that given was desired, a timely and proper request therefor should have been made.

4. The court did not err in rejecting from evidence certain certified photostatic copies of letters claimed to be copies of genuine letters written by the deceased husband, and ex parte affidavits made by witnesses, in another transaction to which the deceased was not a party, as to the genuineness of the originals, and the testimony of the alleged common-law wife of the deceased that the copies were copies of the genuine letters of the deceased on file in the Veterans' Bureau in Washington; and in refusing to permit the wife to testify as to the genuineness of the original letters, the objection being that the wife was incompetent to testify as to their genuineness after the death of the writer.

5. The court did not err in refusing to permit counsel for the intervener to open and conclude the argument in the case. In order to entitle a defendant to the opening and conclusion of the argument, he must in his pleadings, and before the opposite party begins the introduction of evidence, admit enough to make out a prima facie case for the latter.

6. Grounds of a motion for new trial which are not argued will be treated as abandoned.

7. The court did not err in refusing a new trial.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Suit by Early Ramsey against Daniel Ramsey, individually and as administrator of the estate of Willie Ramsey, deceased, and another, in which Charlotte Ramsey intervened. Judgment was entered adverse to the intervener, her motion for new trial was overruled, and she brings error.

Affirmed.

RUSSELL, C.J., and ATKINSON, J., dissenting.

Fleming & Fleming, of Augusta, for plaintiff in error.

Hammond & Kennedy, Paul T. Chance, Hull, Barrett & Willingham, and Edwin D. Fulcher, all of Augusta, for defendants in error.

HILL J.

On October 11, 1930, Early Ramsey filed a petition against Daniel Ramsey, individually and as administrator of the estate of Willie Ramsey, joining as a defendant the National Surety Company, surety on the bond of Daniel Ramsey. The petition as amended alleged in substance that the petitioner was the brother and heir at law of Willie Ramsey, and that Daniel Ramsey as administrator had received $2,839 belonging to the estate, and had failed and refused to account to him as an heir; and the plaintiff prayed for an accounting and judgment against the administrator and the surety company, and for an injunction restraining them from changing the existing status. In his answer the administrator admitted that he had received certain money as the commuted value of an insurance policy issued by the United States on the life of Willie Ramsey, a soldier in the World War, who died on October 7, 1918; and that he had endeavored to have a settlement with the plaintiff and wind up the estate of Willie Ramsey, but that the plaintiff was located outside of the state of Georgia, a fugitive from justice. The National Surety Company filed an answer averring, among other things, that a woman named Charlotte Ramsey, a nonresident of Georgia, claimed to be the wife of Willie Ramsey and as such his sole heir at law. On January 19, 1931, Charlotte Ramsey filed a petition to intervene, alleging in substance that the administrator of the estate of Willie Ramsey had received $2,839 as the commuted value of the insurance policy for $10,000 issued by the United States on the life of Willie Ramsey; that the beneficiaries named in the policy by the soldier were his mother, Anna Ramsey, and his wife, Charlotte Ramsey; that monthly payments were made to Charlotte Ramsey and Anna Ramsey as equal beneficiaries; that Anna Ramsey has since died; that under the pension law the commuted value of her interest was not payable to her estate, but to the estate of Willie Ramsey; that Willie Ramsey left no child; that intervener is the sole heir at law of Willie Ramsey, because she was his common-law wife; that on February 7, 1919, she submitted to the Veterans' Bureau her claim for compensation as one of the two beneficiaries under the insurance policy, and her claim was duly allowed. She prayed that she be declared the sole heir of Willie Ramsey, and that the administrator be directed to pay over to her the net proceeds of the estate. The administrator filed his answer to the intervention, denying that Charlotte was the common-law wife of Willie Ramsey, and averring that the balance of the insurance money in his hands, after paying out certain sums to an attorney at law and to himself, amounted to $1,307. Early Ramsey filed a similar answer.

The case was tried on the issue of whether Charlotte Ramsey was the common-law wife of Willie Ramsey. The jury returned a verdict against the claim of the intervener. A motion for new trial was overruled, and the exception is to that judgment.

1. The motion for new trial contains statements of fact; and it is argued that the motion should not be considered, because it does not have the statutory approval of the trial court. The language of the judge's order entered upon the amendment to the motion is as follows: "The grounds of the within amendments to the motion for new trial are hereby approved." In Tifton, etc., R. Co. v. Chastain, 122 Ga. 250, 50 S.E. 105, it was held that an entry upon the amendment to a motion for new trial that the amendment is allowed, "and the grounds therein set out approved," is a sufficient approval of the grounds of the motion. And in Price v. State, 170 Ga. 294, 152 S.E. 572, it was held: "Prior to the act of 1911 (Ga. L. 19...