Bell v. Felt , 119 Ga. 498 ( 1904 )

Lamar, J.

(after stating the foregoing facts.) The assignment of error on the judge’s refusal to permit Arnold, a witness for the defendant, to answer the questions propounded can not be considered, because it nowhere appears what his testimony would have been, nor whether the same would have been material or helpful. But this objection does not cover the assignment of error on the court’s refusal to permit Felt’s counsel to propound certain appropriate questions to Bell, the opposite party. The rule requiring a statement as to what the answer-would have been does not apply to those asked of a hostile witness, or to inquiries on cross-examination where counsel is sifting a witness, laying the foundation for other evidence, or seeking to discover material facts indicated by the question, and where the attorney does not know, or can not be. expected to know, what the witness would testify. The assignment of error, therefore, in the present case is well within the exception stated in Griffin v. Henderson, 117 Ga. 383. In fact the petition for certiorari complies fully with the spirit of the rule, and states not only the purpose of the question, but what tbe defendant expected to prove by his adversary. The evidence thus sought was material, tending as it did to show that Bell had agreed that if Felt did not approve of the exchange Arnold might come and get the mules, thus establishing as a fact that they had been taken in pursuance of a condition which made the subseqúent act of Arnold lawful instead of unlawful, there being in fact no force or violence by Arnold in taking the mules. He made a claim — hardly a demand — for their possession, and that was immediately acceded to by the driver. Indeed it appears that Bell in the first instance got possession of the mules by reason of the fact that the Indiana Fruit Company’s agent exceeded his authority in making the exchange. According to Bell’s contention, Arnold in like manner, without fraud or violence, got possession because-the driver voluntarily acceded to Arnold’s request.

The judge of the superior court rightly granted a new trial generally. The statement in the bill of exceptions that he did so because of the exclusion of certain testimony does not modify the unrestricted terms of the order. Felt had no cause to complain of the judgment as entered. He did not know of the recital in the bill of exceptions for the thirty days in which he was allowed to except, nor indeed until after the time within which he could have presented a bill of exceptions. The case is not, therefore, as argued by the plaintiff in error, similar to the grant of a new trial on one ground, which is in legal effect a denial of all others. Long v. Bullard, 69 Ga. 678; Singleton v. S. W. R. R., 70 Ga. 465. In those cases the order on its face showed the single ground on which the new trial was granted. Here the judgment is general. It is claimed that it was restricted by the subsequent recital in the bill of exceptions. This could not be done. The case therefore is within the well-established rule that this court will not interfere with the first grant of a new trial in a justice’s court, where it does not appear that the law and facts required a judgment in favor of the plaintiff below. Civil Code, § 5585.

Judgment affirmed.

All the Justices concur, except Simmons, G. J., absent.