Steed v. Cruise , 70 Ga. 168 ( 1883 )

Haee, Justice.

This confused, blotted and irregular transcript of the-record, has puzzled us no little in ascertaining the facts it is alleged to contain. We shall, however, take the grounds for a new trial in the order set forth, hoping rather than feeling an assurance that we clearly understand the circumstances on which they rest.

1. We see no error in refusing to continue the case to-enable the defendant to establish a copy of the petition filed on behalf of the widow for a year’s support of herself -and her minor children. This matter should not have been ■deferred until the case was called for trial, or at léast, if it had been deferred until that time, some reason should have been given for the delay; and that, so far as we can discover, was not done. Neither do we understand that it was the duty of the judge to suspend the case and sign a rule nisi to establish the paper, because the ordinary was disqualified to act, being of counsel in the case; and if the rule nisi had been then signed, it is not clear to us that it would have strengthened the showing for a continuance) •or in any manner have accounted for the delay in preparing the case for trial. The plaintiff in error (defendant below), cannot complain that he was allowed to prove by ;parol, if he could, the contents of the lost petition.

2. There was no error in compelling the production of the Attaway deed for the land in question to plaintiff’s father. A subpoena duces tecum had been served on Watson, who was not nominally a party to the suit, though fie was the warrantor of the defendant’s title, and had employed the counsel in the case to defend that title, in whose 'hands he had placed the deed to be used on the trial the -deed, though actually in the hands of the attorney, was •legally in the custody, and under the power and control, •of the party subpoenaed to produce it. To have excused himself from the penalty of disobedience to the mandate of the subpoena, he had either to produce the paper, or to ■swear that it “ was not then in his power, custody, posses•sion, or control, and was not at the time of serving the •subpoena.” Code, §3515.

3. If it was error, under the circumstances, to admit the deed from Attaway in evidence, because it was neither •stamped nor recorded, it was error that did not hurt, be- • cause it was, subsequently to its admission, withdrawn by the plaintiff from the consideration of the jury as evidence. Besides, both parties claimed under this deed, and it was drawn from the custody of defendant’s counsel, who had it to sustain the title he set up. He relied upon it as a link in his chain of title, and it did not lie in his mouth, to impeach it. The plaintiffs really had no ■ use for it; it was sufficient for their- purposes to show that their father was in possession of the land at his death, and that-they succeeded to the same as his heirs.

4. The next ground of the motion for a new trial complains of the rejection of the power of attorney from. Martha Cruise to J. P. Watson, upon objection by plaintiffs’ counsel, without stating what the objection was. It. is incumbent upon the plaintiff in error to show affirmatively the error complained of, or it will not be considered, by this court. Upon looking into the record; however, we-discover a good reason for rejecting this evidence. There was no evidence of the execution of the paper, and no-offer was made to establish the fact by either of the two-subscribing witnesses, nor was any foundation, laid in the-absence of these subscribing witnesses so as to authorize the introduction of other evidence to prove the execution “off the paper.

5. The complaint in the next ground of the motion is,, that the court overruled defendant’s objection to the admission of certain testimony, without stating what the objection was. The omission to specify this, is fatal. That a general objection need not be noticed and acted upon by the court below, has been so frequently ruled by this court that we weary of the repetition of the rule.

6. The 6th ground of the motion for a new trial was-not certified by the judge, and was abandoned here; and the seventh ground complains of his refusal to charge as requested in writing by the defendant, the substance of the request being, that the order of the ordinary appointing appraisers to set apart a year’s support for the widow and. minor children is their authority to act in this matter; that this, coupled with an order to sell the property so set apart,- raised a conclusive presumption that the ordinary, in passing this order to sell, had observed all the previous requisitions of the law as to setting apart the» year’s support; and that this presumption precluded the plaintiffs from going behind this order to sell, to attack the previous proceedings. This request was properly rejected, for it is, to say the least, questionable if the ordinary had jurisdiction to order the sale;. because the sale, if fairly made by the widow for the purpose of obtaining means to support the family, would have passed the title to the purchaser, irrespective of such order. Tabb et al. vs. Collier, February Term, 1882.^* Doe, ex dem. Miller et al. vs. Roe & Monroe, 50 Ga., 566.

Apart from this, the request is based upon a partial view of the testimony, and excluded from the consideration of the jury the important issue made, whether or not the order for sale was fairly obtained; whether it was the act ■ of the widow, or of Watson, who assumed to act as her agent throughout the entire transaction, and who, while, thus acting as her agent, became the purchaser of the property, as it is alleged, and as is supported by some testimony, at less than one-third of its value.

7. The exceptions to the charge of the court, as set out in the 8th and 9th grounds of the motion for new trial (which, as they relate to the same subject, we will consider together), are not, in our opinion, well taken. The charge fairly and fully submitted to the jury whether the application for the twelve months’ support was made in writing to the ordinary by the widow, upon a proper compliance with the statute as to notice; whether appraisers were appointed in conformity thereto; whether, acting under such appointment, the appraisers had made return of the property thus set apart within the time prescribed by law; and whether the return was recorded, as required, after remaining in the ordinary’s office the prescribed length of time, without objection filed by creditors and others; or if such objections had been filed, the same were overruled; and in instructing them that a failure in these respects rendered the proceeding invalid. Code, 2571, 2573. The attention of the jury was directed by these charges to every essential provision of law for obtaining this allowance, as appears from the above cited sections of the Code; and a careful inspection of this record satisfies us that not one of these requirements was fully or substantially followed in this proceeding. If more specific instructions' had been desired by the defendant, he should have requested them in writing. His failure to do so cannot operate to the prejudice of the plaintiffs.

8. As to the 10th, 11th and 12th grounds of the motion for a new trial, that the verdict is contrary to law, to the equity and justice of the case, contrary to evidence, etc., we can only say, that it appears to us, that it is in accordance with each and every of them.

9. The point was not madé or insisted upon in the court below, though it is urged here, that the verdict is too uncertain to render any judgment thereon, for the reason that there is a finding in favor of Jackson Cruise, when the evidence and record show that Jackson Cruise was not an heir of the intestate and not a party to the suit; there was a finding in favor of five of the nine children, -and the insertion of Jackson Cruise’s name in the verdict would make the finding in favor of six, contrary to the plainly expressed purpose of the jury. However this may be, the question is not before us for determination, because, as we have intimated, it was not passed upon by the court below, and no such question is made by the bill of exceptions. But in order to avoid further litigation and trouble we call attention to the provisions of law for amending verdicts ; this may be done so as to make the verdict conform to the declaration whenever the error plainly appears upon the face of the record (Code, §3491); or if a part of it be legal and part illegal, the court will construe it and order an amendment by entering a remitter as to that part which is illegal, and give judgment for the balance. Ib., 3493. That verdicts must, in order to avoid a protraction of the contest, have a reasonable intendment and receive a reasonable construction, and are not to be avoided' •except from necessity, is too clear to admit of question of •doubt. Code, §3561.

Judgment affirmed.

* 6S Ga , 641.