Wood v. Children

• Decision Date: 31 January 1857
• Docket Number: No. 106.,106.
• Citation: 21 Ga. 576
• Parties: Willis Wood, plaintiff in error. vs. Milly McGuire's Children, defendants in error.
• Court: Georgia Supreme Court

21 Ga. 576

Willis Wood, plaintiff in error. vs. Milly McGuire's Children, defendants in error.

No. 106.

Supreme Court of the State of Georgia

JANUARY TERM, 1857.

Action to recover land and mesne profits, from Bibb Superior Court. Tried before Judge Powers, May Term, 1856.

This was an action brought, in the form prescribed by Act of 1847, by the children of Milly McGuire, against Willis Wood, and William Johnston, to recover lot of land No. 68, in the fourth district of originally Houston, now Bibb county, and for mesne profits.

The defendants pleaded:

1st. The general issue.

2d. The statute of limitations.

3d. (By way of amendment) That since the commencement of this suit, one of the plaintiffs, Daniel J. McGuire, has conveyed his interest in the land in dispute, by deed, dated 30th January, 1855.

The case being called for trial, William H. Calhoun warrantor, vouched to appear and defend, moved for a continuance, on the ground of the absence of L. N. McGuire, one of the plaintiffs of record, who had been subpoenaed to appear and be examined as a witness, but who failed to attend.

It was admitted that defendants had had two consecutive continuances, neither of which was for providential cause, next preceding this term of the Court, and since said case had last been to the Supreme Court.

The Court refused the application for a continuance, and this constitutes the first ground of the motion for a new trial.

A notice to produce a deed for the premises in dispute from Lovick N. and Absalom B. McGuire to William H. Calhoun; also, a deed from Calhoun to Benjamin H. Gray, had been served upon Stubbs and Hill, attorneys for defendants.

In response to the notice, Mr. Stubbs stated that he had had said papers, and had them when notice was served, that he had not received them from either of the defendants, Wood or Johnson, but from William H. Calhoun; who was then in Court, and on whom a subpoena duces tecum had been served, and that he had returned said papers to Calhoun, who was then in Court with them, and that defendants, Wood and Johnson, were also in Court ready to answer said notice and subpoena.

The Court required Mr. Stubbs to get the papers, and ordered Calhoun to deliver them up in Court.

In obedience to this order, Mr. Stubbs produced the papers and delivered them to the plaintiff's counsel. Stubbs objecting to said order. And this constitutes the second ground of the motion for a new trial.

In the course of the trial, plaintiff's counsel offered to read the answers of Milly McGuire to interrogatories. Defendants objected to the reading of the answers upon the ground, that there had been no legal service of said interrogatories upon defendant or waiver thereof. It appeared that a waiver of notice was endorsed upon the interrogatories signed by Poe & Nesbit, defendants' attorneys, but who were not in fact defendants' attorneys, and were now representing plaintiffs. By way of explanation, James A. Nesbit, of the said firm of Poe & Nesbit, stated in his place, that Johnson, one of the defendants, soon after suit was brought, spoke to him in reference to defending the case. Never employed him, but spoke to him with a view to employ him, and consulted with him for that purpose. Never said anything more about it, and Mr. Poe is now here as plaintiff's attorney. Mr. Poe stated that he was employed by plaintiff after said waiver was signed.

It was admitted that the interrogatories and answers had been in Court ever since May Term, 1853, and were read without objection, on all the former trials.

The Court overruled the objection and admitted the an-swers. And this ruling constitutes defendants\' third ground for new trial.

Plaintiffs then offered in evidence the will of Thomas Rainey, deceased, and proposed to read therefrom the following clause, to wit:

"I will and bequeath to my grandchildren, the children of Milly McGuire, their heirs and assigns forever, lot or parcel of land containing 202½ acres, known as lot No. 68, in the 4th district of Houston county."

To the introduction of which will as evidence, defendant objected, on the ground, that there was no order of any Court admitting the same to record. The oath of the subscribing witness was attested by the Clerk of the Court of Ordinary, purporting to be done at a regular term of the Court, but no evidence that the Justices or either of them were present. The Court overruled the objection, and admitted the will; and this constitutes defendant's fourth ground for a new trial.

Upon the close of the testimony, the defendant's counsel requested the Court to charge the jury as follows:

ist. If the jury believe Willis Wood to have been in exclusive possession of the west half of the lot of land at the commencement of the suit, holding the same under contract of purchase, the plaintiffs having dismissed their action as to the said Wood, they can not in this event, find as to said west half in favor of the plaintiffs or either of them; and this, although they may believe that Wood, subsequently to the commencement of said suit, may have abandoned such contract or possession, and disclaimed title thereto.

2d. That if the jury believe the possession of the defendant at the commencement of the said suit was not adverse, and that Daniel McGuire has conveyed his title to said lot, no recovery can be had in this suit for said Daniel's interest.

3d. And if such conveyance is proved, then no such recovery can be had, whether he did or did not hold adversely at the time of such conveyance.

Which charge the Court refused to give, but charged the jury, "That although the defendants may have held under McGuire and in subordination to the plaintiffs\' title, so as to defeat the operation of the statute of limitations; yet after suit brought, the possession of defendants was adverse, and a deed made by Daniel McGuire, after suit brought for his share of the premises is void, and conveyed no title out of him, and can not be set up by defendants to defeat a recovery as to him, and if you find for the plaintiffs, find four-fifths of the premises and mesne profits, in favor of the plaintiffs,, and one-fifth in favor of defendants, as against Lovick N. McGuire, he having sold all his interest before suit brought."

Which charge, and refusal to charge, constitutes defendant's fifth ground for a new trial.

In the progress of the argument of counsel to the jury, and while the last counsel for plaintiff was addressing them, they moved to amend the declaration, by striking out the name of Willis Wood, as one of the defendants, which the Court permitted, no objection being made by defendant's counsel.

The jury found in favor of four of the plaintiffs, the undivided four-fifths of the premises in dispute, and three hundred and thirty-nine dollars, mesne profits; and as against Lovick N. McGuire, the remaining plaintiff, in favor of defendant, the other undivided fifth part of said premises.

Defendant by his counsel moved the Court for a new trial, upon the grounds already stated, and because the verdict was contrary to law and the evidence.

After hearing argument, the Court overruled all the grounds taken in the rule nisi, and refused a new trial.

To which decision counsel for defendant excepted, and assigns the same as error.

Stubbs, Hill & Tracy, for plaintiff in error.

Lanier & Anderson, for defendants in error.

By the Court.—Lumpkin, J., delivering the opinion.

This case had been continued twice. It was in the discretion of the Court to continue it again, or not. Could the testimony of Lovick McGuire have been available had he attended Court, we should have been of the opinion, that the circumstances attending his absence, would have justified, if not absolutely required, a postponement of the cause. But the object of his evidence was to impeach his mother. To do this, the foundation had first to be laid by examining her. Interrogatories had been taken out for this purpose, which had not been executed and returned. Hence the testimony of young McGuire would have been immaterial; and considering the length of time this case has been in Court, we are not disposed to overrule the Circuit Judge in refusing the continuance.

Litigation in our Courts is too protracted, and it has been truly said, that justice when it comes, is so burdened with expense, that injustice was scarcely worse. Some of the cases on this docket by their repeated recurrence, are almost coeval with this Court. This should not be. This case has been tried three times. It has been here three times. And yet, its substantial merits were developed at first. No new fact or feature has been disclosed since. Upon the very point to which the testimony of Milly McGuire the mother relates, to wit: The acknowledgment of Calhoun, that he knew when he was buying this land, that the title was in Absalom McGuire's children; is not that fact patent upon the deed...