Turner v. Elliott
| Decision Date | 16 January 1907 |
| Citation | 56 S.E. 434,127 Ga. 338 |
| Parties | TURNER v. ELLIOTT (two cases). |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The sufficiency of the examination preliminary to the introduction of secondary evidence of a lost original is left largely to the presiding judge, and where he is satisfied and admits secondary evidence, his discretion will not be interfered with, unless clearly abused.
In a claim case, where the claimant admits a prima facie case for the plaintiff in fi. fa., and assumes the burden of proof, he is entitled to open and conclude the argument before the jury, although the plaintiff in fi. fa. may not have introduced any evidence.
An instruction containing a correct legal principle, though inappropriate to the case, if not prejudicial to the contention of the losing party, affords no sufficient reason for granting a new trial.
A verbal inaccuracy in a charge, resulting from a palpable "slip of the tongue," and which clearly could not have misled the jury, is not cause for a new trial.
Error from Superior Court, Berrien County; R. G. Mitchell, Judge.
Action by J. S. Turner against I. H. Elliott. Judgment for plaintiff and execution levied, and Elvira Elliott claimed one of the lots levied on, and defendant claimed the other two as a homestead. Verdicts for claimants in each case, and plaintiff brings error. Affirmed.
Hendricks Smith & Christian, for plaintiff in error.
C. W Fulwood, for defendant in error.
A fi fa. issued from the county court of Berrien county in favor of J. S. Turner against I. H. Elliott, and was levied on three lots of land. One of them was claimed by Mrs. Elvira Elliott, wife of the defendant, and the two other lots were claimed by the defendant as head of his family, as having been duly set apart as a homestead. The two claims were tried together and verdicts rendered for the claimant in each case. The plaintiff in fi. fa. moved for a new trial in each case which, being denied, he excepts in separate bills of exceptions to the judgments refusing him a new trial. Inasmuch as the cases were tried together, and the grounds of the motion in each are identical, we will consider both in this opinion.
1. Objection was made to the record of the homestead being reviewed in evidence, on the ground that the original was primary evidence, and that its existence and loss had not been sufficiently established to admit secondary proof of the same. Where a homestead has been duly set apart and recorded, the papers connected therewith become a muniment of title for the applicant and the beneficiaries. Paschal v. Turner, 116 Ga. 736, 42 S.E. 1010. The applicant was the proper custodian of the paper. He testified that the original homestead was delivered to him by the ordinary, but that he had not seen it for the past 20 years. While asserting positively that the homestead had been in his possession and had been misplaced, on cross-examination his diligence as to search was somewhat equivocal. Where the existence and loss of a document, or whether an exhaustive search for it has been made, are left in doubt, secondary evidence of the document is admissible. Nolan v. Pelham, 77 Ga. 262, 2 S.E. 639. The sufficiency of the preliminary examination to the introduction of secondary evidence of a lost original is left largely to the discretion of the presiding judge, and his discretion will not be disturbed except when clearly abused. Cox v. McDonald, 118 Ga. 414, 45 S.E. 401. There was no abuse of discretion in this instance.
2. In claim cases, where the burden of proof is continually shifting, it is sometimes difficult to determine which of the litigants are entitled to the opening and conclusion of the argument. The general rule of practice is that he who maintains the affirmative of the issue, and upon whom the law casts the burden of proof, is entitled to open and conclude. This general rule is subject to exception. When a plaintiff has undertaken to prove his case and the defendant submits no evidence, the prevailing practice is to accord to the defendant the right to open and conclude the argument. In such a case neither party makes any concession. Where a defendant admits a prima facie case in the plaintiff and pleads justification, or matter in avoidance of the plaintiff's prima facie case, the defendant should be allowed to open and conclude the argument, even though the plaintiff offers no evidence. Cable Company v. Parantha, 118 Ga. 913, 45 S.E. 787. If the party on whom the law imposes the burden of proof accepts from his adversary an admission of a prima facie case, in return for this admission his adversary should be given the right to conclude the argument.
By the admission of a prima facie case a substantial benefit is bestowed. It is equivalent to saying: "I will concede your ability to make out a prima facie case, but I will undertake to show that, notwithstanding such facts may exist which without explanation or avoidance may entitle you to prevail, yet, when all the facts are before the court, and the case is fully developed, the admitted facts are inconclusive, and do not entitle you to prevail." By the admission of the facts necessary to make out a prima facie case, the party making the admission not only relieves his adversary of submitting the requisite proof, but he conceds the truth of such facts. Royce v. Gazan, 76 Ga. 79. When it is admitted by the claimant that the defendant in execution was in possession of the property at the date of the levy, the onus is upon the claimant to prove title, and the claimant has the right to open and conclude the case. Powell v. Westmoreland, 60 Ga. 572. One who...
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