Royce & Co. v. Gazan

Decision Date20 October 1885
Citation76 Ga. 79
CourtGeorgia Supreme Court
PartiesROYCE & COMPANY et al. v. GAZAN, and vice versa.

October Term, 1885.

1. When the facts are conclusive that the claimant was in possession when the levy was made, his admission that defendant in fi. fa. then had possession, should not work his right to open and conclude the argument. No falsehood should work advantage to any litigant in any court of justice.

2. Such admission, thus made in judicio, should preclude the claimant from denying afterwards its truth, but the fact of the possession of defendant after alleged sale to him should stand against him as a badge of fraud.

3. The right to open and conclude, especially on the trial and sifting of facts to unravel the subtleties of fraud, is an important legal right, and, if improperly denied, demands the grant of a new trial.

4. If there be no witness to a writing, anybody who knows the handwriting of the maker may prove it; especially would it be wrong to require the party to call his adversary to prove his own handwriting, and thus make that adversary his own witness.

5. A party may testify to his intention. It is evidence to be considered, but the facts-all the facts-are to be considered to arrive at the truth respecting his real motive.

6. As the case is to be tried over, it is useless to pass on the newly discovered evidence as a ground for new trial.

7. Nor would it be fair to pass upon the merits of the great question of fraud or no fraud.

8. The motion for a new trial should not have been dismissed. The brief of evidence was approved, subject to corrections, in the time allowed, and filed in time, and afterwards corrected and approved in full.

Judgment reversed on original bill of exceptions and affirmed on crossbill. (Head-notes by the court.)

JACKSON Chief Justice.

[Attachments in favor of H. A. Royce & Co. and Loomis & Hart were levied upon a stock of goods and a house and lot, as the property of Nathan Gazan, and Simon Gazan interposed a claim thereto. The cases were tried together by agreement.

The claimant's title rested upon a purchase claimed to have been made from the defendant in payment of a pre-existing indebtedness, except a balance, which was paid to the defendant in money. These debts were evidenced by certain notes and drafts. The plaintiffs denied the bona fide making of this sale, and insisted that the alleged transfer was fraudulent.

The jury found the property not subject. The plaintiff moved for a new trial, on the following grounds:

(1) to (3) Because the verdict was contrary to law and evidence.

(4.) Because the court erred in overruling plaintiff's objection to the admission of the notes and drafts purporting to be signed by Nathan Gazan, upon proof of the execution of the same by the evidence of J. G. McCall that he was acquainted with the handwriting, that the signatures were Gazan's signatures, and that the notes shown were the identical notes delivered to him as attorney for Nathan Gazan in payment for the goods; -the objection being that said Gazan was present in court and that his evidence would be the best evidence of their execution.

(5.) Abandoned.

(6.) Because the court erred in allowing the claimant to assume the burden of proof, with its consequent...

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