Sims v. Sims

• Decision Date: 13 August 1908
• Citation: Sims v. Sims, 131 Ga. 262, 62 S.E. 192 (Ga. 1908)
• Parties: SIMS et al. v. SIMS et al.
• Court: Georgia Supreme Court

62 S.E. 192

131 Ga. 262

SIMS et al. v. SIMS et al.

Supreme Court of Georgia

August 13, 1908

Syllabus by the Court.

Where a number of witnesses testified upon each side of a case, an assignment of error complaining of the admission or rejection of specified testimony of a witness is not valid, when it nowhere appears in such assignment of whose testimony the complaint is made. McTier v. Crosby, 120 Ga. 878, 48 S.E. 355 (2); Central Ry. Co. v. McClifford, 120 Ga 90, 47 S.E. 590 (7); Sims v. State, 68 Ga. 486.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3010-3012.]

(a) One ground of the motion for a new trial was as follows "Because the following occurred upon the trial of the case: 'Q. Where did the proceeds of your labor go? A. To lay the foundation for his fortune. Q. Whose fortune? A. The one these boys are trying to get. Mr. Arnold: We object to that evidence. The Court: Yes, that is an improper statement. Mr. Arnold: We object to going into the entire history of this gentleman and letting him put the construction on what he has done. The Court: He can state what he did, but not that he laid the foundation for the fortune. That statement is withdrawn from you, gentlemen.' The error assigned is sustaining the objection of the propounders and excluding the statement of the witness that he laid the foundation of this fortune." Another ground was as follows: "Because the following occurred upon the trial of the case: 'A. He seemed to. He never said a cross word to me in his life in an angry voice. Q. Did he seem to appreciate your conduct then? A. Yes, sir. Mr. Quillian: I object to that question as leading, and calling for a conclusion. The Court: It strikes me that the question is leading. I think the inference as to whether he showed a great affection for him is a conclusion.' The error assigned is exclusion of the statement by the witness that his father had always shown a great affection for him."

There were a number of other grounds of the motion for a new trial similar in general form and character to those above set out though some of them varied from those quoted in some respects. It is evident from the quotations above that such grounds of the motion were of such a character as to render their consideration improper. They neither state expressly who offered the evidence, nor identify the witness either by name, designation, or otherwise, so as to show whether he was a witness sworn by the propounders or the caveators, or gave other indicia by which the court could read the evidence to which objection was made in the light of its context or surroundings, or determine whether the witness had given the same evidence in substance without objection, or whether the error alleged existed at all, or, if so, whether it was material. Grounds of a motion for a new trial of the character of those indicated by the quotations above made, or of similar kind, are not such as to authorize or require this court to pass upon them. In order to pass upon such grounds, the court would be compelled to search through the entire brief of evidence to ascertain to the evidence of what witness objection was made and the pertinency and force of such objection, and, inasmuch as the brief of evidence cannot properly be made up of questions and answers, the difficulty would be enhanced with a proper brief of evidence, the more especially in a case where the evidence was excluded.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1744.]

An assignment of error in a motion for a new trial, complaining of the admission or rejection of evidence, is not valid, when such evidence is not literally or in substance set forth in such motion, or attached thereto as an exhibit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3010-3012.]

Where, in the trial of a case in the superior court, counsel asked a witness if he did not testify to certain matters upon the trial of the same case before the ordinary, it was not error to refuse to rule out, at the instance of such counsel, the answer of the witness: "Yes, that is what I am testifying to to-day."

[Ed Note.-For ...