Winn v. Hinson , 64 Ga. App. 48 ( 1940 )

1. The court did not err in granting a new trial because of its refusal to rule out testimony of an interested person, relating to a transaction with a deceased person, whose executrix was the opposite party in the case to the party offering the testimony.

2. The court did not err in granting a new trial because of a failure to charge correctly on a material issue in the case.

3. Questions which will not probably arise on another trial are not passed on.

4. The court erred in submitting to the jury the question of the materiality of the alteration of the note sued on.

5. The court erred in admitting in evidence the note sued on.

6. Whether the court erred in refusing a new trial on certain special grounds may be raised by a cross-bill of exceptions.

7. The legally admitted evidence did not demand the verdict found by the jury. The grant of a new trial was not error.

DECIDED OCTOBER 16, 1940. ON REHEARING, DECEMBER 17, 1940. Mrs. W. M. Winn sued Mrs. Alice Hinson, as executrix of the will of J. M. Hinson, on a promissory note signed by J. M. Hinson, apparently payable to W. L. Stone (who was not sued). The defendant filed a plea of non est factum both as to the signature to the note and as to the note in its form as sued on, alleging that if signed by J. M. Hinson it had been materially altered since execution as to date, due date, and payee, the allegation being that it was originally payable to "self." The jury found for the plaintiff in the full amount sued for. The defendant filed a motion for new trial which was in due course amended. In April, 1940, in term, the judge passed an order granting a new trial. During the same term he amended the original order and passed the following order: "The court having passed a general order on April 19, 1940, within the March term, 1940, granting to defendant, under her motion for new trial as amended, a new trial in the above-stated case; the court now within said March term of said court, amends said order granting a new trial in the following particulars: 1. The evidence adduced upon the trial of said case as contained in the brief of evidence approved and filed in said case under said motion authorized and supports the verdict for the plaintiff as rendered by the jury; and the court now specifies the special grounds of the amended motion upon which said new trial was granted, as follows: (a) On ground No. 5 of defendant's amended motion assigning error committed by the court in refusing to exclude, and in admitting, certain evidence of W. L. Stone, a witness for the plaintiff, set out in said ground with the objections thereto. (b) On ground No. 7 of defendant's amended motion assigning error alleged to have been committed in the instructions by the court to the jury, in failing (without a written request) to charge the provisions of the negotiable instruments law as contained in section 14-907 of the Code of Georgia of 1933; and, in instructing the jury on the provisions of section No. 20-802 (4296) of the Code of Georgia of 1933, including the provisions therein, ``with intent to defraud the other party,' as assigned in said ground. (c) On ground No. 8 of the defendant's amended motion challenging the competency of juror Ernest Carter who served as a trial juror in said case, and assigning alleged error on misconduct by said jury and of plaintiff's witness W. L. Stone, as charged and set out in said ground No. 8 of defendant's amended motion."

The plaintiff excepted by direct bill of exceptions to the grant of a new trial. The defendant excepted by cross-bill to the order granting a new trial on the ground that the order should have sustained all of the grounds of the amended motion. 1. The court did not err in sustaining ground 5 of the amended motion and in granting a new trial because of the error therein complained of. W. L. Stone testified for the plaintiff that the note sued on had not been altered since it had been in his possession. Ground 5 complained of the refusal of the court to rule out the testimony on the ground that Stone, being an indorser and liable on the note, was an interested party, and that his testimony related to transactions and communications with a deceased person whose executrix was the opposite party. Stone was such a person as contemplated by the Code, § 38-1603 (4). Staton v. Exchange Bankof Rome, 15 Ga. App. 137 (2) (82 S.E. 784). The testimony of Stone necessarily involved a transaction with the deceased, and was necessarily based on such a transaction. In effect the testimony was that the note had been signed and delivered by the deceased in its present form. Webb v. Simmons, 3 Ga. App. 639 (60 S.E. 334); Dowdy v. Watson, 115 Ga. 42 (7) (41 S.E. 266); Garrick v. Tidwell, 151 Ga. 294 (106 S.E. 551), and cit.

2. The court did not err in sustaining ground 7. The negotiable instruments law changed the general law on the subject of alteration of instruments so far as negotiable instruments are concerned. Cook v.Parks, 46 Ga. App. 749, 752 (169 S.E. 208); Code, § 14-907. Under the negotiable instruments law a material alteration voids the instrument, and it is unnecessary for the party pleading the material alteration to prove an intention to defraud. Code, § 14-906. The defendant's allegation as to the fraudulent intent was surplusage. If the defendant sustains his defense by proof he is not to be denied his rights because he has alleged too much. Saint Clair v. State Highway Board, 45 Ga. App. 488 (165 S.E. 297); Garrett v. Morris, 104 Ga. 84 (30 S.E. 685); Fountain v.L. N. R. Co., 61 Ga. App. 180 (6 S.E.2d 105).

3. The question whether the court erred in sustaining ground 8, relating to the alleged misconduct of a juror, will not be passed on as the question will not likely arise on another trial. Whether the court, in giving in charge to the jury Code, § 38-107, erred in omitting to include "the nature of the facts to which they testified" will not be decided, as the omission was probably due to inadvertence and will not likely occur on another trial of the case. As the alleged error in the charge of the court in defining the preponderance of evidence will not likely recur on another trial the question raised as to this will not be passed on.

4. The evidence showed without dispute that the note sued on had been materially altered, and it was error for the court to submit the question to the jury. The court should have granted a new trial on this ground.

5. The court erred in admitting in evidence, over timely objection, the note sued on, which showed on its face that it had been materially altered, in the absence of any evidence showing that the alterations were made before the note was executed or were made on authority of the maker, the defendant having filed a plea to the effect that the note was not signed by the maker in the form in which it appeared when sued. Code, § 20-801; Wheat v. Arnold, 36 Ga. 479; Winkles v. Guenther,98 Ga. 472 (25 S.E. 527); Jones v. Bank of Powder Springs,31 Ga. App. 263 (120 S.E. 422). A new trial should have been granted on this ground.

6. Whether the court erred in refusing to grant a new trial on certain special grounds may be raised by a cross-bill of exceptions. Allen v.Schweigert, 113 Ga. 70 (38 S.E. 397); Singleton v. SouthwesternRailroad, 70 Ga. 464 (48 Am. R. 574); Wingfield v. Rhea, 77 Ga. 84.

7. The legally admitted evidence did not demand a verdict for the plaintiff, and the court did not err in granting a first new trial.

Judgment affirmed on the main bill of exceptions, and reversed on thecross-bill. Stephens, P. J., and Sutton, J., concur.