Smith v. Berry, 28088
| Decision Date | 06 September 1973 |
| Docket Number | No. 28088,28088 |
| Parties | Charles Frederick SMITH et al. v. Wanda Catherine Smith BERRY. |
| Court | Georgia Supreme Court |
G. Michael Agnew, Vincent P. McCauley, Columbus, for appellants.
Owens, Littlejohn, Gower & Pugh, Neal B. Littlejohn, Columbus, for appellee.
Syllabus Opinion by the Court
This appeal arises from a judgment of the Muscogee Superior Court setting aside an adoption of a three year old female child, Linda Freda Smith, also known as Linda Freda Berry.
The child was born out of wedlock to Wanda Catherine Smith, now known as Wanda Catherine Berry, on February 25, 1970. On June 22, 1970, while a minor, appellee signed a sworn statement consenting to an application for adoption of her child by her father and mother, Charles Frederick Smith and Mary Louise Smith, the appellants herein. Included in this sworn statement was a waiver of any service or notice that may be required by law in connection with any future proceedings concerning the adoption of the child. On June 26 appellants filed a petition for adoption in the Superior Court of Muscogee County. Attached to this petition was the aforementioned consent. On November 23, 1970, after an investigation by the Georgia Department of Family and Children Services, the final order of adoption was entered.
On August 25, 1972, Mrs. Berry, joined by her husband, the father of the child whom she had married, filed a complaint in the Superior Court of Muscogee County to set aside the adoption, regain custody of the child, and have other details pertaining to the child's legal status changed. Appellee contended, as the basis for her complaint in the trial court, that her signing of the consent was the result of material misrepresentations made to her by her mother constituting fraud. Appellee further contended that she relied on these statements to her detriment in signing the consent for adoption and giving up her child. A verdict was rendered by a jury in favor of appellee on February 5, 1973, and judgment was entered on the same date. On February 11, 1973, the appellants renewed their motion for a judgment n.o.v. and for a new trial. It is from a denial of these motions and other rulings made in the trial court that this appeal is filed. Held:
1. Appellant complains that it was error for the court to refuse to grant a motion for mistrial where counsel for the appellee, in his opening statement in a case wherein fraud was alleged, alluded to facts which had not been pleaded. Ga.L.1966, pp. 609, 620 (Code Ann. § 81A-109(b)) provides in part that: 'In all averments of fraud, or mistake, the circumstance constituting fraud or mistake shall be stated with particularity.' The record shows that in its pleadings appellee set forth sufficient facts to satisfy the requirements of Code Ann. § 81A-109(b). See Neville v. Buckeye Cellulose Corp., 118 Ga.App. 439, 164 S.E.2d 257. The question remains whether the trial judge erred in failing to grant a mistrial due to the alleged improper remarks made in counsel for appellee's opening statement concerning appellants financial motives. Counsel is limited in his opening statement to matters he expects to prove. Seaboard Coast Line Railroad Co. v. Zeigler, 120 Ga.App. 276, 170 S.E.2d 60. The fact that counsel did not plead the particular facts objected to here, does not mean that he is estopped from arguing them. The grant of a mistrial because of improper remarks to the jury is...
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Johnson v. State, A89A2189
...the defendant's opening statement. "Counsel is limited in his opening statement to matters he expects to prove." Smith v. Berry, 231 Ga. 39, 40, 200 S.E.2d 95 (1973). The presumption of innocence is not considered evidence in favor of the accused but a way of defining the prosecutor's burde......
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State v. Brown
...of the action and defenses involved in a case so they will be better prepared to understand the evidence presented. Smith v. Berry, 231 Ga. 39, 200 S.E.2d 95 (1973). It has long been believed by practitioners that no right to opening statements exists in this state. Lanneau D. Lide, Some "U......
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Banks v. Lewis, 76417
...that counsel's remarks in his opening statement were properly directed at what he expected the evidence to prove, see Smith v. Berry, 231 Ga. 39, 40, 200 S.E.2d 95 (1973), and that the comment objected to during the closing argument--concerning the legitimacy of the plaintiff's medical expe......
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Davis v. Stewart
...properly limited to a recitation of facts which appellant intended to prove, when counsel strayed from this basic rule. Smith v. Berry, 231 Ga. 39(1), 200 S.E.2d 95. The hearsay was also properly stopped, as well as counsel's final argument concerning matters not in evidence. "The discretio......