Whitaker v. Arnold
| Decision Date | 16 May 1900 |
| Citation | 36 S.E. 231,110 Ga. 857 |
| Parties | WHITAKER v. ARNOLD. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Before a defendant in a civil action arising ex contractu can demand the right to open and conclude, he must, in his pleadings, admit enough to make out a prima facie case for the plaintiff.
2. Evidence as to what a deceased witness testified on a previous trial is not admissible, when it appears that the issue therein involved was not substantially the same as that in controversy on the trial at which such evidence is tendered.
3. Rejecting testimony offered for the purpose of proving a given fact is not cause for a new trial, when the opposite party, as a witness, admits this fact, and it is manifestly one as to which the parties are not at issue.
4. When, in a trial by a jury in a magistrate's court, no material error of law is committed by the presiding justice and the evidence demands the verdict rendered, the superior court ought not to sustain a certiorari sued out by the losing party.
Error from superior court, Heard county; S.W. Harris, Judge.
Action by J. J. Whitaker, administrator, against M. A. Arnold. Judgment for plaintiff was reversed on certiorari, and plaintiff brings error. J. J. Whitaker having died, D. B Whitaker was made party plaintiff. Reversed.
Frank S. Loftin and D. B. Whitaker, for plaintiff in error.
T. B Davis and W. L. Stallings, for defendant in error.
It appears from the record that M. A. Arnold made and delivered to P. H. Whitaker a promissory note for 1,000 pounds of middling lint cotton, payable on a day named. Subsequently the payee died, and J. J. Whitaker, as administrator upon his estate, brought against Arnold, in a justice's court, an action upon this note. The defendant filed an answer, in which he admitted the execution of the instrument sued on, and that the plaintiff was the legal holder and owner of the same. The case was tried on appeal before a jury, who returned a verdict in favor of the plaintiff. The defendant then sued out a certiorari, pending which in the superior court J. J. Whitaker died, and D. B. Whitaker was made a party in his stead. The certiorari was sustained, and the plaintiff excepted. We will now dispose of the questions involved in the case.
1. The plaintiff in certiorari alleged that the magistrate erred in denying him the opening and conclusion. The magistrate was right in so doing. In order to entitle a defendant in a case like the present to open and conclude, he must, in his answer, admit enough to make out a prima facie case in favor of the plaintiff, so as to relieve the latter from introducing any evidence for that purpose. Abel v. Jarratt, 100 Ga. 732, 28 S.E. 453; Railroad Co. v. Brown, 102 Ga. 13, 29 S.E. 130. As the note sued on was payable in middling lint cotton, and as there was no admission as to the value of such cotton at the time of the maturity of the note, the plaintiff was compelled to introduce evidence showing what such value then was, and accordingly had the right to open and conclude; the defendant having introduced testimony.
2. Prior to the trial of the present case in the magistrate's court there had been a trial of...
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