Sivell v. Hogan

• Decision Date: 07 June 1902
• Parties: SIVELL. v. HOGAN.
• Court: Georgia Supreme Court

42 S.E. 151

115 Ga. 667

SIVELL.

v.HOGAN.

Supreme Court of Georgia.

June 7, 1902.

DEPOSITION — LEADING INTERROGATORIES — BREACH OF CONTRACT—EVIDENCE—COMPETENCY OF WITNESS—DIRECTING VERDICT.

1. An interrogatory is not open to the objection that it is leading when it does not suggest the answer desired. An interrogatory which does suggest the answer desired is leading. The first interrogatory objected to in the present case was not leading, and the second one was.

¶ 1. See Depositions, vol. 16, Cent. Dig. § 66.

2. There was no error in admitting the testimony referred to in the third ground of the amended motion for a new trial, the same being pertinent and relevant to the case.

3. The original plaintiff by whom the alleged contract with the defendant was made being dead, the latter was not a competent witness to testify in his own favor as to any contract or conversation between him and the deceased. This ruling applies to the fourth and sixth grounds of the motion for a new trial.

4. Whether or not the document referred to in the fifth ground of the motion for a new trial was for any reason inadmissible in evidence, it was certainly not open to the objection that it was irrelevant.

5. The plaintiff having failed to prove the allegation that the price of the cotton to which the contract with the defendant related was actually tendered, and this allegation being essential, the court erred in directing a verdict in her favor.

6. This case involves no new or important legal question, and does not require further elaboration.

(Syllabus by the Court.)

Error from city court of La Grange; V. M. Longley, Judge.

Action by N. L. Hogan, administratrix, against E. M. Sivell. Judgment for plaintiff. Defendant brings error. Reversed.

After the plaintiff had introduced his evidence, the defendant made a motion to nonsuit the case, which motion was overruled, and the defendant excepted pendente lite. After the defendant had introduced his evidence, the court directed a verdict for the plaintiff for $100 principal, $5.50 interest, and cost of suit; to which ruling and direction the defendant excepted, and afterwards filed a motion for a new trial on the following grounds: (1) Because the court overruled the objection of the defendant to the following question of J. F. Cleaveland: "Did you or not ever hear any conversation between T. M. Hogan in his lifetime with the defendant E. M. Sivell with reference to ten bales of cotton Sivell had contracted to deliver to Hogan on November 1, 1900? and, if so, state what the conversation was." This was objected to in writing on the interrogatories when crossed by defendant, and again at time of introduction of this evidence, —that is, the answer thereto, —on the ground that the question was leading and presumed the facts stated in the question to be true without proof. (2) Because the court overruled the objection of defendant to the following question: "Did or not Hogan ask Sivell, in your presence, to deliver said cotton, or why he had not delivered it, and that he was ready to pay for same, and did or not Sivell refuse to deliver it?" Defendant objected in writing at time of crossing interrogatories, and also at time of offering of this question and answer thereto in evidence, that it was leading, which objection the court overruled. (3) Because the defendant objected to the reading of the following answer of said Cleaveland given in answer to the question set out in the first two grounds of this motion: "I was passing T. M. Hogan's store, going to telephone, and saw Hogan and E. M. Sivell in the store, and heard them talking about cotton, and, as N. L. Hogan and others had told me and talked to...