Standridge v. Standridge
| Decision Date | 13 February 1968 |
| Docket Number | No. 24354,24354 |
| Citation | 160 S.E.2d 377,224 Ga. 102 |
| Parties | Robert W. STANDRIDGE v. Nona M. STANDRIDGE. |
| Court | Georgia Supreme Court |
Sidney T. Schell, Dan C. Mitchell, Atlanta, for appellant.
Lipshutz, Macey, Zusmann & Sikes, John M. Sikes, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
1. Robert W. Standridge filed a suit for divorce against his wife Nona M. Standridge. He alleged that the separation between the plaintiff and the defendant resulted solely from cruel treatment of the petitioner by the defendant for the past several years of the marriage and that he had endured the treatment as long as he physically and mentally could without further injury to his health, life or limb. More specifically the petitioner set forth the alleged cruel treatment as consisting of nagging, fussing, and arguing and complaining, making degrading remarks to the petitioner, insisting that everything must be exactly as the defendant desired it, or that it would be no way at all, refusing to compromise any dispute, refusing to discuss any of the family problems, keeping the petitioner in a state of turmoil, and constantly complaining about ill health which 'is mostly imaginary'. The defendant filed an answer and a cross action in which she sought a divorce and alimony from the plaintiff on the grounds of physical and mental cruelty alleged to have been inflicted upon her by the plaintiff. On the trial of the case, the plaintiff testified that on the day preceding the separation the defendant had received a check for a substantial sum in settlement of a suit or claim for damages which she had and that he asked her to deposit it in a joint checking account which the parties maintained, but that she refused to do so; that at the time he was happy with his wife, there had been no fusses or arguments or any disagreements, their voices had not been raised and that there was no physical violence or slapping or fighting or anything like that and that on the night before the divorce suit was drawn he asked her to take the check and deposit it in the joint checking account and she said no and he said 'Well, then, I'm going to go to the lawyer and see if we can't get a divorce action to get this thing straightened out'; that the next day he went to his attorney and had him draw this divorce suit and that her refusal to deposit the check as he had requested was the sole cause of the separation and divorce action filed by him. This evidence was not sufficient to prove any of the grounds for divorce which the plaintiff set forth in his petition, and it follows that the trial court did not err in directing a verdict for the defendant on the plaintiff's petition for divorce.
2. The trial court did not err in permitting the defendant to open and close the argument to the jury, since the only issues remaining in the case after the directed verdict against the plaintiff on his divorce petition were the issues made by the defendant's cross action. The burden of proof as to that cause was upon the defendant and not upon the plaintiff. Nutting v. Wilson, 75 Ga.App. 148, 151, 42 S.E.2d 575; Whitley Const. Co. v. O'Dell, 94 Ga.App. 426, 429(1), 94 S.E.2d 784. 'The party on whom the burden of proof rests has the right to open and conclude the cause before the jury.' Mason & Dickinson, v. Croom, 24 Ga. 211(2); Higdon v. Williamson, 140 Ga. 187(2), 78 S.E. 767; Gaulding v. Gaulding, 209 Ga. 781, 783(3), 75 S.E.2d 811. It follows that the trial court did not err in refusing the plaintiff the right to open and conclude and in granting this right to the defendant.
3. The plaintiff sought to introduce in evidence unsigned copies of what he contended were joint federal income tax returns of the parties for certain years prior to the institution of the divorce proceeding. Assuming, but not deciding, that these papers were otherwise shown to be admissible, there was no proof that they were duplicate originals or correct copies of the original returns signed by the defendant and the trial court did not err in excluding them on the objection of the defendant that there was no proof of their authenticity. Hargrave v. State, 70 Ga.App. 648, 650, 29 S.E.2d 428; State Highway Dept. v. Harrison, 115 Ga.App. 349, 351(7), 154 S.E.2d 723. While the defendant did admit that she had signed joint tax returns to be filed on behalf of her husband and herself, she denied that she had been permitted by the plaintiff to examine those returns and she denied that she was able to say that the papers offered in evidence were in fact copies of the returns which she had signed. For this reason they were not admissible against the defendant as constituting extrajudicial admissions by her of the amount of the plaintiff's income for the years involved.
4. Before the testimony of a witness given under oath upon a former trial may be proved it must appear that the issues on both trials are substantially the same, that the parties are the same, and that the witness is since deceased, or is disqualified or is inaccessible. Code § 38-314. Estill v. Citizens & Southern Bank, 153 Ga. 618(6a), 113 S.E. 552 and see Taylor v. State, 126 Ga. 557(2), 55 S.E. 474 and Brinson Ry. Co. v. Beard, 11 Ga.App. 737, 741, 76 S.E. 76. Where it is sought to prove the testimony of a witness, a physician, by introducing a transcript of his testimony upon a former hearing, it not appearing that the witness is not still living or disqualified, the necessary showing of inaccessibility is not satisfied by showing merely...
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Sheriff v. State, S03G0492.
...and conclusion of the argument, and Goforth cites Pealock v. Pealock, 227 Ga. 795, 797, 183 S.E.2d 397 (1971), and Standridge v. Standridge, 224 Ga. 102, 160 S.E.2d 377 (1968), both of which reiterate that the party with the burden of proof has the right to open and close the argument, and ......
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