Branch v. Branch , 194 Ga. 575 ( 1942 )

One who assigns error must show error by the record. Where on the trial of an intervention the judge charged the jury that the issue then being tried was not a part of the main case which had been previously referred to an auditor, and therefore that any ruling made by the auditor would not be controlling on such issue, a motion for new trial, complaining because of the failure to charge on the issue as to whether the intervenor was a party to the main case, does not show error, where none of the pleadings or orders of the main case are contained in the motion and record transmitted to this court. In the absence of a showing to the contrary, this court will assume that the judge, who on the trial of an intervention may take judicial notice of the minutes and proceedings in the main case, was authorized by such minutes to state that the issue made by the intervention was one which had not been submitted to the auditor.

No. 14267. SEPTEMBER 21, 1942. S.C. Branch, one of the legatees in the will of J. J. Branch, deceased, filed an intervention in the case of R. E. Branch Sr.v. J. C. Branch as executor of the will of J. J. Branch, deceased, which the bill of exceptions recites was a case in which the superior court of Oconee County had assumed jurisdiction of the estate of J. J. Branch, under its equitable powers. The intervenor alleged, that notwithstanding the auditor's report in said case indicated that the intervenor had sold his entire interest in the estate to R. E. Branch Sr., he had not sold or transferred his interest to R. E. Branch Sr., or to any one else; that he had never acknowledged service and had never been served in the main cause; that he had never been requested to appear before any court or auditor in said case; and that he had never had his day in court. After the court had allowed the intervention, R. E. Branch Sr., hereinafter called the defendant, filed an answer in which he denied the intervenor's allegation that he had never transferred his interest in the estate, and alleged that he held and owned a transfer of the intervenor's interest. The answer also denied the intervenor's allegation that he had not had his day in court.

On the trial of the case made by the intervention the evidence on the question whether the assignment under which the defendant claimed the interest of the intervenor was a forgery was in conflict. The defendant introduced the following acknowledgment of service in the main case, purporting to have been signed by the intervenor and others: "Due and legal service of copy of answer and cross-bill of J. C. Branch as executor of the will of J. J. Branch, deceased, together with copy of order of Honorable Blanton Fortson, Judge S.C. W. C., directing service upon the parties therein named, and making each parties to said case, acknowledged. All other and further process, service, and copies waived, and we and each of us hereby agree that said case may be tried at the July term of the superior court of Oconee County, Georgia, the same being the return term of court to which the original case is made returnable." The evidence was also in conflict as to whether the intervenor's signature on this paper was genuine.

The court in its charge submitted to the jury the question relating to the authenticity of the assignment under which the defendant claimed title to the intervenor's share of the estate involved, but did not allow the jury to pass upon any question with reference to whether the intervenor had been served in the main case or had had his day in court. As to the latter matter the court made the following statement in the charge to the jury: "On the issue of that day in court, I charge you that the issue you are now trying, whether or not this paper purporting to have been signed by S.C. Branch to A. L. Branch, and assigned by A. L. Branch to R. E. Branch, is a genuine paper, was not before Judge Burger [the auditor], and was not a part of the main case referred to Judge Burger, and therefore any rulings made by Judge Burger are not to be controlling on the issues in this case." The jury returned a verdict for the intervenor. The defendant moved for a new trial on the general grounds, and on a special ground assigning error on the instruction quoted above, it being contended that the question whether the intervenor had had his day in court was, under the pleadings and evidence indicated above, a controlling issue in the case, which should have been submitted to the jury even in the absence of a request. The court overruled the motion for new trial, and the defendant excepted. The general grounds of the motion for a new trial are not insisted on in this court, and the only question for determination is whether the special ground shows error. From the bill of exceptions it appears that the superior court, under its equitable powers, had taken jurisdiction of the estate involved, for the purpose of administering it. It also appears that an auditor was appointed in the case. However, the present record contains none of the pleadings in the main case. Nor is there anything in the motion for new trial or elsewhere in the record to show the questions involved under the pleadings in the case referred to the auditor, or whether all or only a portion of the case was referred to the auditor. The judge was not required to submit the entire case to the auditor, and it would have been proper for him to "refer any part of the facts to an auditor to investigate." Code, § 10-101; MassachusettsBonding Insurance Co. v. Realty Trust Co., 139 Ga. 180 (3) (77 S.E. 86). If the issue of forgery was one which was not and could not have been passed upon by the auditor, it was immaterial whether the intervenor was a party to the cause before the auditor. In the instruction excepted to the judge stated that the issue as to the authenticity of the assignment "was not a part of the main case referred to Judge Burger [the auditor], and therefore any rulings made by Judge Burger are not to be controlling on the issues in this case." It is well settled that a court may take judicial notice of its own records in the immediate case or proceedings before it. Fitzgerald GranitoidCo. v. Alpha Portland Cement Co., 15 Ga. App. 174 (82 S.E. 774); 20 Am. Jur. 104, § 86. We are here dealing with an intervention, which on being allowed became a part of the main case before the court. On the trial of the issues made by the intervention, all of the pleadings and rulings made in connection with the main case were therefore properly before the judge. With this record before him, he charged that the issue of forgery was not one which had been referred to the auditor. In the absence of a proper showing to the contrary, this court must assume that the judge's statement was authorized by the record in the main case. He who assigns error must show it by the record. Richmond Hosiery Mills v. Hayes, 146 Ga. 240 (2) (91 S.E. 54); Puckett v. Johnson, 147 Ga. 490 (2) (94 S.E. 569). The special ground having failed to show error in the charge, it follows that the court did not err in overruling the motion for new trial.

Judgment affirmed. All the Justices concur.