Finney v. Sanford , 41 Ga. 295 ( 1870 )

WARNER, J.

The error assigned to the judgment of the Court below in this case, is the granting a new trial on the grounds specified in the motion therefor. There is no error alleged as-to the rulings of the Court upon any question of law in submitting the evidence to the jury. The evidence as disclosed by the record, shows that the wife had a separate estate. That a feme covert having a separate estate may contract, and bind that separate estate for goods and family supplies purchased for the benefit of the same, is not now an open question 'in the Courts of this State: Wyly et al., v. Collins & Company, 9th Georgia Reports, 223; and her admissions if freely and voluntarily made, are competent evidence for that purpose. The wife is a feme sole as to her separate estate, unless controlled by the deed of settlement, or will which creates and conveys it to her. But whilst the wife may contract and bind her separate estate as a feme sole, she cannot bind her separate estate by any contract of suretyship-, nor by an assumption of the debts of her husband: Code, 1773. The main and controlling question on the trial of this case in the Court below, was whether the goods and family supplies for which the note of the husband was originally given, were, in point of fact, furnished for the use and benefit of the wife’s separate estate, or whether the goods and family supplies, were purchased by the husband for his own individual use exclusively, and the wife signed the last note merely as surety for her husband’s debt only. In regard to this main and controlling question in the case, the evidence is conflicting *and contradictory. If the jury had thought proper to believe the evidence offered on the part of the defendants, and had found a verdict for them, then there would have been sufficient evidence in the record to have sustained that verdict. But as the jury have thought proper to believe the evidence offered on the part of the plaintiff in preference to that offered by the defendants, there is sufficient evidence-in the record to sustain their verdict. The whole question depended on the weight and credit which the jury thought proper to give to the evidence before them on this material point in the case. This Court has- repeatedly held, that ia cases where the evidence is conflicting as to the facts, it will not interfere with the verdict of the jury: Flournoy v. Newton, 8th Georgia Reports, 306; Fowler v. Waldrip, 10th Georgia Reports, 351; and many other cases which might be cited.

In Flournoy v. Newton, Lumpkin, J., in delivering the judgment of the Court, said: “If .a new trial is to be granted merely because in the opinion of the Court, the weight of the evidence is on the other side, trial by jury is virtually annihilated, and the Court will be substituted for the jury in every case, in trying the credibility of testimony, and the preponderance of the proof.” In Fowler v. Waldrip, Nisbet, J., in delivering the judgment of the Court, said: “We have over and over again refused to award a new trial when there is evidence on both sides, although the strength of the testimony be against the verdict.” When the evidence is conflicting and contradictory, the jury, and not the Court, are the exclusive judges as to the credibility of the witnesses,, and as to the weight to which their evidence is entitled, in view of their interest, their relation to the parties and other circumstances connected with the transaction under investigation; and the Court has no legal power or authority to interfere with the verdict and set it aside, on the ground that it is contrary to the .evidence. It is only in cases where the verdict is decidedly and strongly against the^ weight of evidence that the Court may exercise a sound cliscretion under the law, and set aside the verdict of a jury. If the-verdict *is decidedly and strongly against the weight of evidence, so much so, as in the sound discretion of the Court, to make it an illegal verdict, it may be set aside, and a new trial may be granted; fmt when there is evidence on both sides and that evidence is conflicting and contradictory, the Court has no legal discretion to control and set aside their verdict, and when it does so, it invades the legitimate province of the jury as regulated by law. According to the well established rulings of this Court, the judgment of the Court below setting aside the verdict, and granting a new trial, on the statement of facts contained in the record, was error. Tet the judgment of the Court below be rer versed.

BROWN, C. J., concurred but wrote no opinion.