Cade v. Hatcher , 72 Ga. 359 ( 1884 )

Hall, Justice.

Three questions are made by this record:

(1.) Did the court err in refusing to allow leading questions to be put to Samuel B. and Benjamin T. Hatcher, who were defendants in the bill, but who were sworn as the complainant’s witnesses, upon their direct examination by the complainant.

(2.) Was there error in refusing to allow the complainant to open and conclude the argument to the jury, when the defendants had put in no evidence, except such as was contained in the answers they were required to make to complainant’s bill ?

(3). Did the court err in refusing to enter a decree against the defendant, Marshall J. Hatcher, when the jury had found all the issues of fact submitted to them on the trial in favor of all the defendants, including the said Marshall J.?

1. Leading questions are generally allowed in cross-examinations, and only in these; but the court may exercise a discretion in granting the right to the party calling the witness, and in refusing it to the opposite party, when, from the conduct of the witness, or other reason, justice requires it. Code, §3865, In Hayden vs. The State, 20 Ga., 155, after stating the general rule, as above, the judge delivering the opinion declared that the case in which this court would touch the superior court’s judgment, allowing or not allowing a leading question to be asked, would be an extreme one.” Leading questions may be put to a witness, who shows reluctance to answer, by the party calling him. 41 Ga., 507 (3 head-note). This.is unqu'es£ tioned, where the witness called is not a party to the suit-; but it is urged that the rule is inapplicable, where the opposite party is made a witness. This point seems to have been ruled the other way by this court in 56 Ga., 24, 27, where it was held that the discretion of the court in refusing to allow leading questions on cross-examination would not be controlled unless abused, especially where the witness was one of the parties to the suit in whose interest the questions were propounded. While in the present case the court in terms refused the privilege of asking leading questions to. the witness, who was one of the opposite parties to complainant calling him, yet the record shows th^t many1 such questions were, in fact, propounded and answered without' objection. But this case is, in point of fact, distinguishable from any of those above cited in two particulars: 1st. The witness called was only one of several parties, defendants to the suit, and the interests of all the co-defendants, as well as those of the one testifying, were liable to be affected by this unusual mode of examination. 2d. One of the purposes of the bill was a discovery from each of the defendants. Numerous interrogatories had been propounded to them, and in answer io these, a full discovery had been obtained, which, we must infer, was satisfactory, inasmuch as no exceptions were filed to any of the answers. That leading questions may be propounded in such bills is undeniable; this is, in fact, the usual practice. Story’s Eq. Plead., §§34-39, inclusive.

In England, and in some of the American states, where parties have not only been made competent, but are compelled by statute to testify in their own cases, this requirement has been held to repeal the auxiliary jurisdiction of courts of equity to compel discovery; indeed, in. several of them this jurisdiction is abolished by express enactment, while in others, as in- this state, it is expressly retained. 1 Pomeroy’s Eq., §§93, 193, 190, 215 ; Code, §§3101, 3103, to 3106, inclusive; as to discovery at law, 17 Ga., 111 ; Code, §§3810, 3811, 3812. This legislation reserves, in express terms, “ the right of cross-examination as in other cases.” When, therefore, the right to this discovery is sought, as in this case, by bill, and is had, it would seem that if the party afterward places the defendant on the stand as a witness, he does so upon the same terms, and subject to the same conditions, as in cases of indifferent parties. By seeking the discovery by bill and interrogatories, he makes the defendant a witness for himself, as well as for the party propounding the interrogatories to make the discovery full. It may be otherwise, and upon principle doubtless is, where this change in' the law of evidence abolishes the jurisdiction, and is, consequently, a-full substitute therefor.

By express provision of the Code, §3107, the answer of-one defendant is evidence for another only when it states facts against his own interest and in favor of his co-defendants. Generally, it is not evidence against his co-defendants. 13 Ga., 206 ; 26 Id., 537 ; 32 Id., 418, 219.

2. Where the defendant to the bill introduces no testimony, it is his right, under the law, to open and conclude the argument-to-the jury. Guess et al. vs. Stone Mt. G. and R. R. Co., decided at this term. The defendants were not compelled to offer their answer, in order to. rely upon it as evidence in their favor. The tender made, in this instance amounted to nothing more than a notification to the opposite counsel that they should treat it as testimony, and was wholly unnecessary. When discovery is had according to the prayer, the defendant becomes the complainant’s witness, and he cannot “turn his back” on the testimony. 57 Ga., 583 ; 2 Story Eq. Jur., §1528.

3. The gravamen of complainant’s bill was, that the division of Samuel J. Hatcher’s estate among his legatees was made with a view to dissipate and conceal Mrs. Hatcher’s interest therein, by distributing it among her children, and thereby to defeat the collection of complainant’s claim against her. This issue was submitted to the jury, and they found it in favor of the defendants. Marshall J. Hatcher received his share of the estate in a debt the executrix held against him and one Redd, who was his partner. The balance of this large debt was taken by Mrs. Hatcher in part of her share, as was also a debt upon a firm, of which her son-in-law was a member. She had a right to take both these claims as she did. It was her misfortune that she lost them. There is no phase of this bill under which an individual liability of Marshall J. Hatcher to his mother could have been decreed to the complainant. Such a decree would have been outside of the allegations and prayers in the bill. No opportunity had ever been afforded him to show that he was not indebted to her at the time of her death or since.

The statute of limitations was pleaded to the only claim set up, and was .found in favor of the defendants. The j ury also found, in effect, that she left nothing to be administered, by finding that she died without visible property. During the years that elapsed between the division of the testator’s estate and her death, Marshall J. Hatcher may have settled with his mother his indebtedness to her, and the legal presumption is, from the lapse of time, that he did so. At all events, no decree, even ii the matter had been pertinent to the issue made, and it does not appear to have been so; could have been rendered without calling on him and giving him an opportunity to be heard in relation thereto.

Judgment affirmed.