Rudulph v. Brown

• Citation: 103 S.E. 251,150 Ga. 147
• Decision Date: 11 May 1920
• Docket Number: 1554.
• Parties: RUDULPH ET AL. v. BROWN.
• Court: Supreme Court of Georgia

103 S.E. 251

150 Ga. 147

RUDULPH ET AL. v. BROWN.

No. 1554.

Supreme Court of Georgia

May 11, 1920

Syllabus by the Court.

On the trial of an injunction case, where one of the issues was whether one of the predecessors in title of the defendant was the legitimate child of his father and mother (who were slaves), it was competent to permit a witness for the defendant to testify that at the time of his birth, in 1859 the father and mother were "living there as man and wife."

In order to raise a presumption of the death of a person who moves from this state to a named point in another state inquiry must be made at the last known domicile of the absentee at which he resided in the other state, and it must be shown, by those who would be most likely to hear from him that he was absent and unheard of in the last place of residence for 7 years.

Error from Superior Court, Camden County; J. P. Highsmith, Judge.

Action for injunction by J. H. Rudulph, administrator of Jack Price deceased, against E. Brown, with intervention by Robert Glover and others, who were allowed to become parties plaintiff. Judgment on a verdict for defendant, motion for a new trial denied, and plaintiffs bring error. Reversed.

On a trial of an injunction case, wherein one of the issues was whether one of defendant's predecessors in title was the legitimate child of his father and mother, who were slaves, it was competent to permit a witness for defendant to testify that at the time of his birth, in 1859, the father and mother were "living there as man and wife," in view of Civ. Code 1910, § 2180, over objection that this was an opinion on the question in issue.

J. H. Rudulph, as administrator upon the estate of Jack Price, deceased, brought his petition for injunction against E. Brown, alleging substantially that the defendant was committing certain acts of trespass upon land described, the title to which plaintiff claimed was in him as administrator, and that the defendant was insolvent and could not respond in damages. The prayer was that the defendant be enjoined from cutting and removing the timber from the land described, or otherwise interfering therewith, and to recover possession of the land. Robert Glover, Joseph Pinkney, and Wilimina Holiday filed an intervention, and asked to be made parties plaintiff, alleging that they are the sole heirs at law of Sarah Pinkney, who it was alleged was the sole heir at law of Jack Price, deceased. This intervention was allowed by the court, and the interveners were made parties plaintiff.

The defendant answered the petition, and averred, among other things, as follows: At some date during the year 1903 Henry Mack Price entered into possession of the land in controversy as the sole surviving child of Jack Price, and occupied the same, living thereon, and such possession continued under the title of Henry Mack Price peaceably and without interruption and notoriously for more than 7 years from and after that time, and the same has continued until the present. While Henry Mack Price was in possession of the land it was levied upon as his property by the sheriff of Camden county, by virtue of an execution issued against Henry Mack Price from the city court of St. Marys, and under the levy the land was duly sold at public outcry by the sheriff on January 4, 1910, at which sale J. H. Rudulph and S.C. Townsend became the purchasers, and a deed was accordingly made to them by the sheriff on said date, conveying the land in controversy, and they were in possession of it until January 26, 1911, on which date Rudulph and Townsend sold and conveyed the property to this defendant, and he has since continued to own and possess the same. The estate of Jack Price owes no debts, and the only interest the plaintiff, as administrator, could have in the property of the estate, is to pay off and discharge the costs in the court of ordinary incurred while administering the estate. As administrator he became bound, so far as the property is concerned, for any claims against the estate of Jack Price. The administrator is solvent and able to respond to the payment of any such claims, and, even if this were not true, his bond as administrator would be bound therefor. The defendant at the time he purchased the property in controversy was not advised of the existence or pendency of said administration, he has never been called upon to pay the costs of the court of ordinary, and before filing this answer he offered to pay off and discharge said court costs, and thereby entirely discharge the estate from any claim against it, which offer was refused by the administrator. It is averred that there is nothing involved in this suit, except the costs of the court of ordinary. Defendant charges that the present suit is malicious, and was brought for the purpose of causing him loss and trouble. He prays that if, upon the trial of the case, he should prevail, he thereupon be permitted to pay the said costs and charges that may be against the property, and any claim that plaintiff as administrator holds against it, and that the costs of this proceeding be charged and decreed against the plaintiff. There is a further prayer that the plaintiff be restrained and enjoined from further proceeding against the property in question, or from molesting the defendant in respect thereof.

The jury returned a verdict for the defendant, and, upon a motion for new trial being denied, the plaintiff excepted.

S. C. Townsend, of St. Marys, for plaintiffs in error.

Conyers & Wilcox, of Brunswick, and Emmett McElreath, of Kingsland, for defendant in error.

HILL, J. (after stating the facts as above).

1. There are but two special grounds of the motion for new trial. The first complains that the court erred in permitting a witness for the defendant, D. B. Cooner, to answer the following question of defendant's counsel, over objection: "In what condition, with regard to wedlock or marriage, were Jack Price's [meaning Henry Mack Price] father and mother living at the time he was born?" the witness answering, "Living there as man and wife." The objection to this testimony was that there was no wedlock among slaves before the war, and that the witness could only state the facts. It is insisted that it was for the jury to determine whether the state of facts recited by the witness constituted wedlock, or showed that they were living together as husband and wife, and that the relation of these slaves at the time of the birth of the child in question was for determination...