Webb v. Biggers
| Decision Date | 13 April 1944 |
| Docket Number | 30407. |
| Citation | 30 S.E.2d 59,71 Ga.App. 90 |
| Parties | WEBB v. BIGGERS. |
| Court | Georgia Court of Appeals |
Rehearing Denied May 9, 1944.
Syllabus by the Court.
1. The evidence sustains the verdict.
W L. Nix, of Lawrenceville, for plaintiff in error.
R F. Duncan, of Lawrenceville, for defendant in error.
1. This is the second appearance of this case here. Biggers v. Webb, 58 Ga.App. 684, 199 S.E. 756. On the first trial, a verdict was directed in favor of the claimant, and the plaintiff excepted. This court held that the direction of a verdict was error. That opinion was based on the ground that the evidence was conflicting, and that whether the property was subject was a jury question. The evidence then and now is practically same, if indeed it is not now more favorable to the plaintiff in fi. fa. than on the former trial. We will not set forth the substance of the evidence here; but deem it sufficient to refer to the former decision of this court as setting forth the evidence sufficiently. The evidence sustains the finding of the jury that the property is subject, and the overruling of the motion for new trial on the general grounds was not error for any reason assigned.
2. (a) Special ground 1 complains of the admission of certain evidence in favor of the plaintiff over the objection of the claimant. This testimony was to the effect that counsel for the plaintiff inquired of the claimant while she was a witness on the stand if a guano company had not obtained a judgment against her in 1932 or 1933, whereupon counsel for the claimant objected to the admission of such testimony on the ground that it was irrelevant and immaterial, and threw no light upon the issues involved in the case. In response to this objection counsel for the plaintiff stated that he intended to connect it up, and show that claimant became insolvent, and for this reason turned the property in question over to the defendant in fi. fa. In view of the statement made by counsel for the plaintiff that he would connect the evidence up in such a way that it would be material and relevant, the court admitted the evidence. Counsel for the plaintiff failed to so connect it, after having proceeded with the examination of the witness. Counsel for the claimant did not thereafter call the attention of the court to this testimony, and did not request that it be eliminated from the consideration of the jury. We may conclude that the assignment of error in this ground is sufficient to present the question raised and still it would import no merit. This is true for the reason that when evidence is admitted provisionally by the court and the proviso is not met by the opposite party it is incumbent upon the movant to again call the matter to the attention of the court and invoke a ruling thereon. In Hix v. Gulley, 124 Ga. 547, 52 S.E. 890, it is said: "When the court provisionally admits evidence on the statement of counsel that he will subsequently supply a defect in the preliminary proof necessary to its admission, it is not for the judge of his own motion to determine whether such defect has been supplied and rule out the evidence, without a request to that effect from the other party."
(b) Special grounds 2 and 3: The second ground complains of the admission in evidence, over the objections of claimant, of a note and mortgage for $75, dated April 7, 1932, for the purchase price of some of the mules involved in the claim. The note was signed by G. L. Webb, and duly recorded. The objections were that this note was immaterial and irrelevant, and its execution not proven. This assignment of error is unsound. It tended to show by inference, at least, that the property described therein was purchased and paid for by the defendant in fi. fa. The instrument having been recorded, the contention that its execution was not proved is without merit. Moreover, we think the evidence of the seller proved its execution. As to ground 3, the objection is directed to the admission of a note signed by G. L. Webb to J. B. Oakes, dated October 28, 1936, for $50, covering the purchase price of the mules described therein. As best we can gather from the record, this was a copy of the note. The claimant had been served with a notice to produce the note, but failed to do so. Under the record the copy of the note was admissible. From all the evidence, including the description of the property in the notes and the levy, the jury were authorized to infer the property subject. This ground is without merit.
(c) Grounds 4, 5, 6, 7, 8, and 9 urge error because of certain excerpts from the charge. We will not deal with these grounds separately, since counsel for neither side does so. Suffice it to say that the assignments of error go to the consideration which the jury might draw from the dominion possession, and use of the property in question by the defendant in fi. fa., and the acquiescence of the claimant (the defendant in fi. fa. and the claimant being husband and wife), and the inferences which the jury might draw from the evidence relating thereto. The attorney for the claimant earnestly insists that the charge was not adjusted to the facts. It is contended that this is particularly true since, as claimant contends, possession prior to the rendition of the judgment is not in any sense illustrative of who owned the property at and since that time. No law is cited to sustain this position. We are of the opinion that the purchasing of property, and the exercising of dominion over it in the way of possession and use prior to the rendition of the judgment, is admissible, at least as a circumstance, and that the jury may consider this along with all the other evidence in the case, in determining who was the owner of the property at the time of the levy. Particularly is this true in the instant case where the evidence tended to show, even from the testimony of the claimant herself, that the defendant in fi. fa. purchased the property himself, used it as his own (so far as the public was concerned), and used the land of the plaintiff as his own, with her permission (so far as the public was concerned), and since the evidence tended to show from the testimony of the claimant herself that there had been no change in this respect in the manner in which the defendant in fi. fa. used the property in question from the time they were married up and until the date of the levy. It is further contended, in this connection, that the court misstated the contentions of the parties and misstated the law applicable to the evidence regarding...
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...party it is incumbent upon the movant to again call the matter to the attention of the court and invoke a ruling." Webb v. Biggers, 71 Ga.App. 90, 92(2a), 30 S.E.2d 59 (1944). Accord Bryan v. Barnett, 205 Ga. 94, 97(3), 52 S.E.2d 613 (1949). (e) Enumeration 19 sets out that the trial court ......
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