Myers v. Wright , 1924 Ga. LEXIS 168 ( 1924 )

Hill, J.

1. The first ground of the motion for new trial complains that the court below erred in admitting in evidence, over objection, a certified copy of the adjudication as a bankrupt of J. H. Myers & Son, a partnership composed of J. H. Myers and Jesse Myers, as a partnership and individually, which copy was certified by the referee in bankruptcy as custodian of the matter; the objection being that the certificate is not signed by the proper authority, that is “by the clerk of the superior court or a deputy of said court. It is certified to by the referee in bankruptcy, and he is not the keeper of the records.” Eeld, that the admission of such evidence is not error for the reason assigned. McLanahan v. Blackwell, 119 Ga. 64 (45 S. E. 785) ; 1 Collier on Bankruptcy (12th ed.), 509 (a); Bank of Manchester v. Birmingham Trust &c. Co., 156 Ga. 486 (119 S. E. 603).

2. On the trial of the ease counsel for plaintiff propounded to T. E. Wright, the plaintiff, the following question: “What, if anything, did you hear him [J. H. Myers] say under his oath there with reference to the manner in which he had sold this land that is in controversy here in this litigation, and his having the right to repurchase it within five years, if you heard him say anything to that effect?” This above question referred to the testimony delivered by J. H. Myers when he was examined at a creditors’ meeting before the referee in bankruptcy. Counsel for movant objected as follows. “I object to the question and move to exclude the question; and I object to the evidence he seeks to elicit, because of the fact that J. H. Myers has not answered here, and statements made by him not in the presence of W. A. Myers, this defendant, cannot be competent testimony in the case on trial so far as W. A. Myers is concerned. It is not competent testimony.” The court ruled as follows: "J. H. Myers is a party, and it would be admissible against him.” Counsel for movant, objecting further, said: “The trustee is suing him, and there is no controversy between him and the trustee; the controversy is between W. A. Myers and the trustee; and this evidence is not admissible and is not competent — the sayings of another party not in the presence of this party, W. A. Myers.” The court: “What is the date of the deed from J. H. Myers?” Mr. Wood, counsel for the plaintiff: “In 1920.” The court: “I will overrule the objection.” Whereupon the witness testified as follows: “I was present at Marietta before the referee on this application for bankruptcy at the time they had the creditors’ meeting and at the time they examined [J. II. Myers], At that time in giving in his evidence he said that he had deeded this property to W. A. Myers, and that he had five years to redeem it in and get it back. He claimed that W. A. Myers had paid him, but that he had that long to get it back. This statement was made while he was giving his evidence in the creditors’ meeting before Mr. Anderson, the referee.” Held, that this testimony was not incompetent, it appearing that J. H. Myers remained in possession after the sale; nor for the reason assigned, that the issue on trial was between the plaintiff and W. A. Myers, and any statement that J. H. Myers, the codefendant, made at any time in the absence of W. A. Myers could not be admitted so as to affect W. A. Myers’ title. Banks v. McCandless, 119 Ga. 793, 795 (47 S. E. 332).

No. 4008. June 12, 1924.

3. Error is assigned in the third ground of the motion for new trial, because the court admitted in evidence the original petition of J. H. Myers & Son, together with a schedule of assets and liabilities filed in the United States court for the northern district of Georgia, to be adjudged a voluntary bankrupt. Movant objected to this evidence, on the ground that it is not a transcript from the record of the United States court, and because it is the original petition, and not a proper transcript and under the seal "of the clerk of that courts Held, that the admission of this evidence was not error, it being admitted that the record offered in evidence was the original. Rogers v. Tillman, 72 Ga. 479.

4. The refusal of the court to direct a verdict for either party is not cause for a new trial.

5. The court charged the jury as follows: “Now the burden, gentlemen, is on the plaintiff to establish the avei’ments of his petition by a preponderance of the evidence, that is the greater weight of the evidence; that is the rxxle as to W. A. Myers.” This charge is not error for the reason that it is not in compliance with the statute defining what is the prepondei-ance of evidence; there being no timely request to give a fuller chax-ge on the subject.

6. The verdict was authorized by the evidence, and the judge did not err in refusing a new trial.

Judgment affirmed.

All the Justices concur, except Beck, R. J., who dissents from the ruling in the second paragraph. J. P. Brooice, for plaintiff in error. George P. Gober, John 8. Wood, and A. J. Henderson, contra.