Kimsey v. Rogers , 166 Ga. 176 ( 1928 )

Hines, J.

A brief of the evidence introduced in the trial of this case was approved by the trial judge as true, and ordered filed as a part of the record; and it was so filed. The bill of exceptions omits to specify the brief of evidence as a part of the record to be sent to this court, and such brief is material to a clear understanding of the errors complained of. Plaintiffs in error move to amend the bill of exceptions by specifying the brief of evidence as a part of the record to be sent to this court. As the record contains a duly authenticated brief- of the evidence accompanying the motion for new trial, and as the bill of exceptions fails to specify it as a part of the record to be sent to this court, and as it is a material part of the record necessary to a clear understanding of the errors complained of, the bill of exceptions is amendable by specifying the brief of evidence as a part of the record to be sent to this court. Kelly v. McGehee, 67 Ga. 364; Ruffin v. Paris, 75 Ga. 653 (2); Civil Code, §§ 6184, 6188. Leave is granted to the plaintiffs in error so to amend.

Fifty acres of land, and five additional acres for each child under the age of sixteen years, of the property of every debtor who is the head of a family, is exempted from levy and sale by virtue of any process whatever, under the laws of this State; provided, none of the land claimed as exempt is within the limits of a city, town, or village, and does not-include any cotton or wool factory, saw or grist mill, or any other machinery propelled by water or steam, the value of which exceeds the sum of $200, and provided said land does not derive its chief value from causes other than its adaptation to agricultural purposes. The land so exempted shall include the dwelling-house, if the value of said house and improvements does not exceed the sum of $200. The land so exempted shall remain -for the use and benefit of the family of the debtor. Civil Code, § 3416 et seq. The act of the ordinary in receiving and recording the schedule of property sought to be set aside as a homestead under the provisions of the Code, just cited, is ministerial only, and the validity of such exemption may be collaterally attacked in a court of competent jurisdiction in a case involving the title of a purchaser at sheriff’s sale of the property claimed to be exempt. Marcrum v. Washington, 109 Ga. 296 (34 S. E. 585); Stinson v. Hirsch, 125 Ga. 149 (53 S. E. 1011).

The existence of the facts necessary to constitute a valid exemption under the sections of the Code before referred to need not affirmatively appear on the face of the schedule filed, but it is none the less essential that they should actually exist. One of these necessary and essential facts is that the head of a family can exempt land not in a city, town, or village, only when the im•provements thereon do not exceed $200 in value. Piedmont National &c. Association v. Bryant, 115 Ga. 417 (41 S. E. 661); Evans v. Piedmont National &c. Association, 117 Ga. 940, 945 (44 S. E. 2).

On the cross-examination of W. M. Eogers he was asked what it cost him to ceil the dwelling-house upon the land claimed in the homestead, and what improvements he put upon the place after he purchased it from J. H. Miller, and the costs, -in labor and material, of making such improvements. Counsel for the plaintiffs objected upon the ground that such testimony was irrelevant and immaterial, as the question was what such improvements were worth at the time he claimed the homestead. The court sustained the objection and refused to receive such testimony. While proof of the cost of an improvement is not the criterion of its value, yet such evidence is admissible as a circumstance in an inquiry instituted to ascertain that value. Southern Railway Co. v. Williams, 113 Ga. 335 (38 S. E. 744). The right of cross-examination, thorough and sifting, which belongs to every party as to the witnesses against him, should not be abridged, especially where the witness is the opposite party to the cause on trial, and is testifying for the purpose of making out his own case. Becker v. Donalson, 133 Na. 864 (4) (67 S. E. 92).

On cross-examination of Rogers counsel propounded to him the question: “What would it cost to put the buildings and improvements on the land you claim as a homestead?” Counsel for the plaintiffs objected upon the ground that this question was irrelevant and immaterial. The court sustained the objection and refused to permit the witness to answer. The exclusion of this evidence was erroneous for the reasons specified in the preceding paragraph. Eor the same reasons it was error to refuse to allow counsel for the defendants to ask Ed Haddock, on cross-examination, what it would cost “to place the improvements that are on the place,” and what it would cost to weatherboard' and ceil the house.

Rogers testified that he sold the mineral interests in the tract of land, not embraced in the homestead, for $8000 during the war, received therefor $5000, and then took the land back. Counsel for the defendants propounded to the witness the question: “ üs it not true that the same vein or ore runs through this land you are claiming as a homestead?” Counsel for the plaintiffs objected upon the ground that the testimony sought was irrelevant and immaterial. Counsel for the defendant stated to the court that he expected to show that the lands were more valuable for the mineral interests. The court sustained the objection and refused to permit the witness to answer the question. On the issue whether this homestead land did not derive its chief value from other cause than its adaptation to agricultural purposes, raised by the defendants in their answer, this evidence was admissible, and the court erred in ruling it out and in refusing to permit the witness to answer the question so propounded to him.

The court charged the jury “that the test as to the value of the improvements on the homestead is not what they cost, but what they were worth at the time the application was made to the ordinary for the setting aside of the homestead.” The defendants 'contend that this charge was an expression of opinion on the evidence, and that it excluded from the consideration of the jury anything as to what the improvements cost, as the cost of the improvements was for the consideration of the jury in arriving at their value, and not simply the opinions of witnesses as to their value. The charge was not erroneous for the reasons assigned. While the cost of improvements and the facts upon which witnesses base their opinions touching the same may be considered by the jury in arriving at the value of such improvements, the value of such improvements at the time the plaintiff scheduled the same for exemption as a homestead is the question for determination by the jury, in the light of all the facts and circumstances of the case.

The court charged the jury as follows: “I charge you that the burden of proof rests upon the defendants to show by a preponderance of the evidence that their contentions are correct. What is meant by a preponderance of the evidence is the greater weight of the evidence, that superior weight of the evidence [which], while not sufficient to wholly free the mind from a reasonable doubt, yet is sufficient to incline the mind of a reasonable and impartial juror to one side of the issue rather than the other.” The defendants complain of this charge on the ground that the burden was on the plaintiffs to make out their case by a preponderance of the evidence, and not upon the defendants. The burden of proof generally rests upon the party asserting or affirming a fact, and to the existence of whose ease the proof of such fact is essential. Civil Code, § 5746. The burden of proof is usually on the plaintiff. Grier v. Ward, 23 Ga. 145. Where there is no affirmative defense, or no plea in the nature of confession and avoidance, the burden of proof is upon the plaintiff, under this section. Courson v. Pearson, 132 Ga. 698 (64 S. E. 997). The burden in this case was on the plaintiffs to show the existence of the facts necessary to constitute a valid exemption under the provisions of the Civil Code, §§ 5746 et seq. It follows that the court erred in giving the charge complained of.

As we grant a new trial in this case, it becomes unnecessary to consider the eighth ground of the motion, which alleges that the judge erred in trying the case before the remittitur from the Supreme Court had been filed with the clerk and made the judgment of the lower court; and the ninth ground, which alleges the discovery of new evidence. A proper judgment can be taken, ordering the remittitur to be spread upon the minutes of the lower court, and making the judgment of' this court the judgment of that court; and the newly discovered evidence, if admissible, can be admitted upon another trial.

Judgment reversed.

All the Justices concur.