Lasseter v. Simpson , 78 Ga. 61 ( 1887 )

Bleckley, Chief Justice.

1. Where a minor by next friend is one of the complainants, and pending the action the minor becomes of age, the name of the next friend may be stricken by amendment, and the cause proceed. Sims vs. Renwick 25 Ga. 58.

2. The more regular form of pleading is for the minor to sue by the next friend, but if the next friend sue as next friend of the minor, it is the same thing in sub-stand.

3. The specific ground on which the competency of a witness was denied must be disclosed. If he testifies to various facts, some of which he was competent to prove, a general allegation that he was incompetent to testify as in the brief of evidence will appear, is too general. The surviving party to a contract, who is not a party to the record, is generally competent to testify against his interest, or where his interest i_s equally balanced. If he be liable for more on his individual warranty of realty than on his misappropriation of personalty, as administrator, and his testimony tends to charge him on the former and to discharge him on the latter, he is competent.

4. Where a deed is misdescribed in the original bill, but the record shows a fragmentary amendment, which was probably intended to correct the misdescription, and which seems to serve that purpose, and the deed was admitted in evidence, its admission was not error. Moreover, it does not appear upon what ground the admission of the instrument was objected to.

5. The Supreme Court cannot, without knowing what the verdict was, determine whether it was variant from the pleadings, or contrary to law, to evidence, or to the charge of the court, or without evidence to support it. The verdict in this case is not in the record. It was a verdict upon a bill praying relief, specific and general. What relief was found by the verdict, we do not know. Why it was that the verdict was left out, we do not know. Counsel in the argument here said that the verdict was not in the record, but insisted that we could know what it was from the record; but the only record of it is that there was a verdict for the complainant. What relief was granted, whether it fell .under the classification of general or special, we know not. Of course, we cannot reverse the court below on a verdict we have never seen, and the contents of which are not even recited here in the record.

6. That a witness, after the trial, made certain declarations, at variance with his sworn testimony, will not work a new trial. A witness swore one thing in court, and then went out and said the fact was the other way; and after the trial was over, the movants for a new trial proved he said it was the other way. He swore one way, and talked another after the trial; and they want a new trial on this ground. Of course they cannot get it. 56 Ga. 363.

Judgment affirmed.