Wardlaw v. Wardlaw

• Decision Date: 10 June 1930
• Docket Number: 20426.
• Citation: 154 S.E. 159,41 Ga.App. 538
• Parties: WARDLAW v. WARDLAW et al.
• Court: Georgia Court of Appeals

154 S.E. 159

41 Ga.App. 538

WARDLAW v. WARDLAW et al.

No. 20426.

Court of Appeals of Georgia, First Division

June 10, 1930

Syllabus by Editorial Staff.

Grounds for new trial complaining of charges stating contentions of movant, not alleging statement was unfair, held without merit.

Grounds for new trial complaining of charges because of failure to give additional instructions held without merit.

Charge that return of appraisers is prima facie evidence that widow is entitled to year's support set out, but to set aside return if preponderance of testimony showed it was excessive or erroneous, held proper.

Form of verdict, "We, the jury find for objectors and against appraisers," of year's support for widow held proper.

Submission of verdict for widow, with instruction to sign it as made, if finding for widow and verdict for objectors with blank for jury to write in property widow was entitled to held proper.

Charge to award widow furniture, in addition to property or money awarded, if finding for objectors to widow's year's support, though verbally inaccurate, referred to finding for less than amount awarded, and was not reversible error.

Verbal inaccuracy in charge, not misleading jury, held not cause for new trial.

Award of new trial requires showing of error and injury.

In proceedings involving year's support to widow credibility of evidence showing condition of living of widow held for jury.

Administrator need not be party to caveat to year's support set aside for widow (Civ.Code 1910,§ 4041).

Civ. Code 1910, § 4041, provided that ordinary, on application of widow or guardian of child, or any other person on notice to representative of estate, must appoint five appraisers to set aside year's support.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Proceeding between L. B. Wardlaw and J. B. Wardlaw and others. Judgment for latter parties, and former party brings error.

Affirmed.

A. E. Ramsaur and Clarke & Clarke, all of Atlanta, for plaintiff in error.

Hendrix & Buchanan, of Atlanta, for defendants in error.

Syllabus OPINION.

BLOODWORTH J.

1. Special ground 1 of the motion for a new trial complains that the court erred in failure to charge section 3657 of the Civil Code of 1910; ground 2 of the failure to charge section 4040; and ground 9 of the failure to charge section 4044. In failing to charge these sections the court committed no error, as neither of them is adapted to the facts of the case. See, in this connection, Brazil v. City of LaGrange, 37 Ga.App. 500 (1), 140 S.E. 782.

2. Special ground 3 of the motion alleges that the court erred in charging as follows: "They say further that although the deceased and Mrs. Lula Wardlaw were occupying the same apartment during the last two years of his life, that they were not living as husband and wife." Ground 4 alleges that the court erred in charging that: "They say that the report should be set aside for the reason that it does not appear therefrom that the administrator of said estate was given ten-days notice as required by law." The excerpt from the charge in each of these grounds is taken from that portion of the charge wherein the court was stating the contentions of the movant. There is no insistence that these contentions were not fairly stated. In Matthews & Co. v. Seaboard Airline Railway, 17 Ga.App. 664, 87 S.E. 1097, this court held: "It is not reversible error for the court, in stating the contentions of the parties, to state these contentions as they are presented in the pleadings, even though there be no evidence, or insufficient evidence, to support the contention." See, also, White v. Knapp, 31 Ga.App. 346 (7a), 120 S.E. 796; Ga. Ry. Co. v. Simms, 33 Ga.App. 536 (5), 126 S.E. 850. It is also insisted in each of these grounds that additional instructions should have been given. There is no merit in this contention.

3. In ground 5 the court is alleged to have erred in charging as follows: "As I have charged you, the return of the appraisers is prima facie evidence that the widow is entitled to the year's support as set out in the return; but if the evidence in this case satisfied your minds, by a preponderance of testimony, that this return is excessive, and for any reason set up in the caveat, to which I have called your attention, should be set aside, then it would be your duty to find for the objectors and sustain their caveat and set aside the return." For no reason assigned should a new trial be granted because of this charge.

4. For no reason alleged did the court err in giving to the jury the following form of verdict: "We, the jury, find in favor of the objectors and against the appraisers." Nor did the court err in writing out and handing to the jury two forms of verdict with the following explanation: "I have written out for your convenience these two verdicts, and I have left in the verdict in favor of the objectors a blank to write out such property or money as you think the widow is entitled to, provided you find...