Arnold v. Johnson , 150 Ga. 604 ( 1920 )

Atkinson, J.

1. “ It is only where discovery, is expressly prayed for in plaintiff’s petition that two witnesses, or one witness and corroborating circumstances, are required to rebut the answer of defendant, as to facts within his own knowledge, responsive to the discovery sought.” Toomer v. Warren, 123 Ga. 477 (51 S. E. 593) ; Civil Code (1910), § 4547.

2. There was no error in the court’s charge on the effect of certain conversations admitted in evidence, nor in refusing to direct a verdict for the defendant.

3. The verdict was supported by evidence, and the court did not err in overruling the motion for new trial.

Judgment affirmed.

All the Justices concur.

After the filing of this answer the plaintiff presented and had allowed an amendment in which she denied that Mrs. Arnold then had or ever had any interest or title in the property; and alleged that the pretended claim of title in her was a subterfuge to deprive the plaintiff of her rights. She prayed that Mrs. Arnold be made a party, be required to set up under oatli her claim of title or interest, and be required to join her husband in making title to the plaintiff. Mrs. Arnold filed a sworn answer stating that she bona fide held legal title to the land; denying that her claim was a subterfuge to deprive the plaintiff; and alleging that her purchase of the land was upon the faith of 'apparent rights of Walker, under whom she claimed title. Arnold amended his answer by swearing to it. Walker having died, his executrix was made a party defendant. The record shows no answer by her. A further contention by the plaintiff (arising upon the evidence) was that the quitclaim deed from Walker was originally made to Mr. Arnold, and had been so altered as to make Mrs. Arnold appear as the grantee.

The jury found that the plaintiff was entitled to the specific performance prayed for, and that the deed from Walker to Mrs. Arnold should be canceled. Mr. and Mrs. Arnold moved for a new trial, which was denied, and they excepted. One ground of this motion was that the court charged the jury, “ as a matter of law, that in an equitable petition like this, when the plaintiff does not waive discovery, and the defendant comes into court and files a sworn answer to the equitable proceeding, that such answer is evidence in the case. The probative value of it is to be determined by you.” The movants contended that this was error, because the court failed to add that it required the evidence of two witnesses, or of one witness and corroborating circumstances, to overcome such answers.

Another ground was that the court charged the jury: “ Certain conversations or declarations made by J. W. Arnold, or alleged to have been made by J. W. Arnold, and testified to by the plaintiff in this case, were admitted to you as testimony. I charge you that those declarations or conversations with the plaintiff and the defendant are admissible against J. W. Arnold, and do not hind J. W. Arnold’s wife, or affect any right she may have.” The movants contended that it was error to instruct the jury that such conversation or evidence was binding on either defendant.

Other grounds were, that the court erred in overruling a motion by the defendants to direct a verdict in their favor, because their answers were sworn to, discovery was not waived, and there was not sufficient evidence to overcome these answers; and that the verdict was contrary to law, and unsupported by evidence.

J. 11. Felker, for plaintiffs in error. Walker & Roberts, contra.