Stevens v. Way, 66129
| Decision Date | 06 September 1983 |
| Docket Number | No. 66129,66129 |
| Parties | STEVENS v. WAY. |
| Court | Georgia Court of Appeals |
Stephen H. Harris, Savannah, for appellant.
W. Ray Persons, Decatur, for appellee.
Robert Way filed a dispossessory warrant against Paul Stevens to obtain possession of 1.8 acres of property in Liberty County, Georgia. The trial court denied Stevens' motion for summary judgment and the jury found for Way. Stevens appeals.
The land in question was originally owned by Ellen Roberts Stevens, who was the wife of appellant Stevens and the aunt of appellee Robert Way. In 1973 Mrs. Stevens had the property transferred secretly to Way by warranty deed and had the deed recorded in January 1974. It was established at trial that neither Stevens nor Way was aware of this transfer until several days following Mrs. Stevens' death in 1980 when Way received the deed in the mail.
1. Appellant contends that the trial court erred by admitting, over objection, unsolicited hearsay testimony by John Underwood, the attorney who prepared the deed for Mrs. Stevens at her request. He testified that the decedent asked him not to call her at home when the deed was finished because she did not want her husband to know that she was deeding the property to Way.
OCGA § 24-3-2 (Code Ann. § 38-302) provides: "When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence." Evidence adduced at trial established that the deed in question was properly executed, witnessed and recorded. Further evidence was introduced indicating that the deed had been mailed to appellee by the grantor prior to her death, thus completing delivery and placing ownership of the property in appellee. Underwood's testimony was not introduced into evidence for the purpose of establishing the fact that the deed had been made, but for the purpose of explaining the motive behind decedent's gift to appellee. This testimony was therefore admitted properly under the provisions of OCGA § 24-3-2 (Code Ann. § 38-302) as original evidence. Edgeworth v. Edgeworth, 239 Ga. 811, 812, 239 S.E.2d 16 (1977).
Although there was no enumeration of error as to the delivery of the deed, we note that the deed here was recorded six years before the grantor's death and that such recordation is prima facie evidence of delivery. Corley v. Parson, 236 Ga. 346, 347, 223 S.E.2d 708 (1976). In addition to this presumption of delivery, there was some evidence, although contradictory, which would justify the jury's finding that Mrs. Stevens mailed the deed to appellee before her death. Delivery would thus be complete even though the deed was not received and accepted by appellee until after the death of the grantor. Allgood v. Allgood, 230 Ga. 312(1), 196 S.E.2d 888 (1973).
2. Appellant also contends that the trial court erred by allowing unsolicited testimony by Underwood after counsel for both parties stated that they had no further questions for him. The trial court has discretion in admitting legal evidence at any stage of the trial before the verdict is rendered. Sims v. State, 16 Ga.App. 211(1), 84 S.E. 976 (1915). This court will not interfere with the trial court's exercise of its discretion unless it is plainly apparent that wrong has resulted from its abuse. Scocca v. Wilt, 243 Ga. 2, 3, 252 S.E.2d 401 (1979). Appellant has made no showing that the trial court abused its discretion. Further, we find that Underwood's statements were made in response to questions posed by counsel or by the trial court.
3. Appellant further contends that the trial court erred when it refused to allow him to question Underwood out of the jury's presence as to the testimony which the court had just ruled admissible. This is not an instance where the surprise appearance of an unlisted witness requires a continuance in order for counsel to interview the witness. See Nathan v. Duncan, 113 Ga.App. 630, 641(7), 149 S.E.2d 383 (1966); International etc. Local 387 v. Moore, 149 Ga.App. 431, 436(10), 254 S.E.2d 438 (1979). In the absence of surprise of this type, we know of no requirement that appellant be allowed a "dry run" interrogation as to the testimony of appellee's...
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Patterson v. Long
...the truth of the matters asserted in them. See Edgeworth v. Edgeworth, 239 Ga. 811, 812, 239 S.E.2d 16 (1977); Stevens v. Way, 167 Ga.App. 688, 689(1), 307 S.E.2d 507 (1983); Thompson v. Thompson, 153 Ga.App. 80, 81–82(3), 264 S.E.2d 558 (1980). See also Ga. Rules of Evidence, supra, § 17:1......
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