Garrick v. Tidwell , 1921 Ga. LEXIS 222 ( 1921 )

Atkinson, J.

1. A judgment of the superior court in a statutory proceeding- for the eviction of a tenant holding over, commenced and tried under the provisions of the Civil Code, §§ 5385-5388, providing for summary eviction of tenants holding over, failing to pay rent when due, or tenants at will or sufferance refusing to deliver possession when the same is duly demanded, is conclusive between the parties and their privies in estate. In such a case the defendant may repel the charge that he is tenant, by proving that he is equitable owner of the land, under a parol gift from the alleged landlord. When that is done and the issue as to title is actually decided, the judgment based on- such issue may be pleaded in estoppel in an action of complaint for land between the same parties or their privies. Tomlinson v. Driver, 53 Ga. 9; Hammond v. Thornton, 107 Ga. 259 (33 S. E. 183); Irvin v. Spratlin, 127 Ga. 240 (55 S. E. 1037, 9 Ann. Cas. 341), and cases cited. If the decision in Jordan v. Jordan, 103 Ga. 482 (30 S. E. 265), is in conflict with that in the ease of Tomlinson v. Driver, supra, it must jdeld to the older decision, which has been followed’by other decisions of this court.

2. A judgment of the superior court in a proceeding under the statutes mentioned in the preceding division can not be pleaded as an estoppel while it is under review in the Corprt of Appeals. But where such a judgment has been carried for review to the Court of Appeals and affirmed by that court, and the decision of the reviewing court made the judgment of the trial court, the judgment so reviewed may then be pleaded as an estoppel in other cases between the same parties involving the same question. The judgment unexcepted to, striking paragraph 10 of the original answer setting up as an estoppel the judgment in the dispossessory proceeding while that judgment was on review in the Court of Appeals, will not es-top the defendant from amending the answer in such manner as to set up the judgment in the dispossessory proceeding as an estoppel after that judgment has been affirmed by the Court of Appeals and the judgment of the reviewing court made the judgment of the trial court. It was erroneous to strike the amendment to the plea, setting up the judgment in estoppel after it was affirmed by the Court of Appeals and the judgment of the reviewing court had been made the judgment of the trial court.

3. A ground of a motion for new trial should be complete within itself. When such a ground complains of the admission in evidence of an administrator’s deed, on the ground that the land was held adversely to the administrator at the time of the sale, and the deed does not show such fact, and no evidence is set out in the ground of the motion for new trial showing the fact, the objection to the admission of the deed is insufficient to require its exclusion.

4. When this ease was before the Supreme Court on a former occasion (Tidwell V. Garrick, 149 Ga. 290, 99 S. E. 872), it was held in effect, that the plaintiff was the “ personal representative ” of her deceased husband, within the meaning of the Civil Code,’ § 5858, relating to the competency of witnesses to testify, and that the defendants were incompetent to testify in their own behalf as to “transactions and communications” with the decedent. The record on that subject, while more elaborate, is not substantially different from what it was on the former trial; and the decision above mentioned is controlling. It is argued in the briefs of counsel for the plaintiffs in error that the record is substantially different; but this contention is not borne out by comparison of the records of file in this court The motion for rehearing, which was denied by this court, stressed the same facts and reasons which are now relied on for a different ruling.

5. In an action involving title to land, instituted by the “ personal representative” of a decedent against one. who sets up a parol gift of the land by the decedent and the making of valuable improvements on the land in pursuance of the alleged gift, testimony of the defendant, to the effect that during the life of the donor he had placed valuable improvements on the land, had reference to “a transaction” with the decedent which the latter could have rebutted, denied, or explained if alive; and the defendant was incompetent to give such testimony as a witness. Civil Code, § 5858; Zellars v. Orr, 147 Ga. 607 (95 S. E. 6); Hill v. Merritt, 146 Ga. 307 (91 S. E. 204); Chamblee v. Pirkle, 101 Ga. 790 (29 S. E. 20). The case of Walker V. Neil, 117 Ga. 733 (3), 738 (45 S. E. 387), refers to improvements made after the death of the donor. The present case differs on its facts from Nugent v. Watkins, 129 Ga. 382 (58 S. E. 888), in which there was no question as to a gift or other transaction between the deceased and the witness, and where it was held that independent physical facts, which do not involve any communication or transaction with the decedent, are not within the rule excluding such communications and transactions.

6. Other grounds of the motion for new trial, relating to admissibility of evidence, and certain remarks of the court made out of the presence of the jury, show no error and are not of - such character as to require elaboration. As the judgment of the trial court will be reversed on account of the ruling striking the amendment to the defendants’ answer, no ruling will be made as to the sufficiency of the evidence to authorize the judge to direct a verdict for the plaintiff.

Judgment reversed.

All the Justices concur.