Stanford v. Murphy

• Decision Date: 30 September 1879
• Parties: Stanford et al. v. Murphy, administrator.
• Court: Georgia Supreme Court

63 Ga. 410

Stanford et al. v. Murphy, administrator.

Supreme Court of the State of Georgia

(September Term, 1879.)

[COPYRIGHT MATERIAL OMITTED]

Equity. Practice in the Superior Court. Evidence. Charge of Court. Witness. Husband and wife. Before Judge Simmons. Pike Superior Court. April Term, 1879.

To the report contained in the opinion it is only necessary to add that the following were among the grounds of the motion for new trial:

1. Because the court held that complainants could not amend their bill so as to waive discovery after ascertaining what was the answer of defendant, although it had not been filed.

2. Because the court charged in reference to the statute of limitations, the plea on the subject having been withdrawn. [It appears that the defendant filed a plea of the statute of limitations by which complainants claimed to be *sur-prised and asked a continuance; whereupon defendant, in order to prevent a continuance, agreed to withdraw this plea, and did withdraw it. Both sides then announced ready, and the case proceeded. During the progress of the trial, complainants introduced in evidence a record showing the discharge of the administrator. In opening the argument for the defense, counsel insisted that, as this evidence had gone in without objection, the court should charge in reference to the statute of limitations. Counsel for complainants objected, but did not again move for a continuance. The court gave the charge.]

3. Because the defendant was incompetent to testify in relation to matters stated by him. [It was claimed by the complainants that the note, if good at all, had been paid by the decedent in cotton. Witness testified to the delivery of cotton and a conver-sation between defendant and decedent in regard thereto at the time. In his testimony, defendant denied the receipt of the cotton as testified to; he admitted the receipt of some cotton, but explained that it was not connected with this note. The remainder of his testimony was mainly confined to transactions and conversations with living parties.]

4. Because, in relation to the validity of the note, defendant's wife was allowed to testify as follows, complainants' counsel objecting: "The note was in my husband's possession all the while. I always put away his notes and money for him, and got them for him whenever he wanted them. In looking over the packages, I frequently saw this note." [On cross-examination, the witness stated that she was the only one that took care of the papers and had access to them. Her testimony was objected to on the ground that it arose out of her confidential relation with her husband]

5. Because the court failed to charge that matters in the answer other than those which were responsive to the bill were not evidence. On this subject he charged as follows: "The bill charges the note for $1,275.62, claimed by defendant *to have been given by Purifoy to him is not a genuine note, but was forged. The answer in reply to this charge is responsive to the charge, and is evidence for defendant, and it is conclusive upon that point, unless it is overcome by two witnesses, or one witness and corroborating circumstances. But if so overcome, then the answer is not conclusive. The amended bill alleges that all the indebtedness from Purifoy to Murphy was settled in a cotton transaction during the life of Purifoy. The answer of the defendant in reply to this charge is responsive to the charge, and is conclusive on that point, unless it is overcome by two witnesses, or by one witness and corroborating circumstances, " etc.

The motion was overruled, and complainants excepted.

J. F. Redding; J. J. Rogers, for plaintiffs in error.

J. S. Boynton; Stewart & Hall; Hunt & Taylor; B. M. Turner, for defendant.

Jackson, Justice.

The bill was filed by certain legatees against the administrator with the will annexed of Stanley Purifoy, to recover the sums due them under the will. Subsequently an amendment was made laying special stress upon the payment to himself by the defendant, Murphy, of a promissory note made by the testator to him for borrowed money; and the issue was narrowed to the validity of this note, and if valid, to its payment in cotton in the life-time of the testator. The verdict was for the defendant, a motion was made for a new trial on many grounds, it was overruled, and we will consider such grounds as are necessary to be ruled—the others being of no consequence, or properly ruled by the Court, if of any.

1. It seems that when first filed, the bill had no waiver of discovery, and that discovery was afterwards waived. It appears, however, that the complainants ascertained what *would be defendant\'s answer, or what it was as prepared, before they filed the waiver; and the presiding judge held them estopped from waiving the answer after they had peeped, as it were, into" their adversary\'s hand. With the ruling of the judge in this matter we decline to interfere. All wilful wrong doing on the part of anybody was not pressed at all before us; but the presiding judge ruled properly, we think, that when one searches the conscience of another and makes him swear, and discovers what, or parts of what, he does swear, whether rightfully or wrongfully, he may not then say that will do me no good, and in effect repudiate the search and...