Doe ex dem. Mathis v. Roe , 24 Ga. 384 ( 1858 )

Benning, J.

By the Court. delivering the opinion.

The tenant claimed under Molder by a deed with warranty. Molder was taking part in preparing the defence. Molder. therefore, bore towards the case a relation of the same sort, as that borne by the tenant. Therefore, whatever would, if done by the tenant, vitiate the execution of interrogatories would, if done by Molder, equally vitiate the execution of the interrogatories.

[1.] Did what was done by Molder in this case vitiate the execution of the interrogatories for Bunyan Mathis ? The Court below thought that it did not, but we think that it did.

Molder was within ear-shot of the witness, and no doubt, known so to be by the witness. He had conversed with the witness about the case, and about his testimony; that is, .the witness had told him what he would swear to. His .position in the adjacent room, was a good one to enable him to have the pledge redeemed. The case is in no respect different, so far as principle is concerned, from what it would have been if Molder had been in the room' itself in which the testimony was being taken. See 19 Ga. JR. 630.

We think then, that the Court erred in not rejecting the interrogatories of Bunyan Mathis. Does it follow that we ought to grant a new trial ? This question will be considered in conclusion.

The next exception was to the decision allowing the interrogatories to John G-. Smith to be read to the jury.

The objection to these was, that the case stated at the head of the ctnsioers, was not the same as the case on trial. The difference being, that in the case on trial, the tenant was Colbert, in the case as stated at the head of the answers, the tenant was Brooks. But the Judge certifies that there was evidence appearing on the answers, that they belonged to the case on trial.

The questions it seems were in the right case. If the answers were answers to those questions, they, we may presume, were also in the right case, whether headed so or not.

[2.] We see nothing in this objection.

The Court allowed the defendant to lay evidence before the jury after the close of the argument to the jury on both sides. This was excepted to by the plaintiff’s counsel, but they expressed no surprise at the evidence. They asked for no continuance to enable them to meet the evidence.

[3.] This being so, we think that there is nothing that they can complain of in the decision. The subject of the order and mode of introduction of testimony is one committed to the discretion of the Court. We see no abuse of that discretion here.

Besides this evidence had no effect. It was offered as an answer to the demand of the plaintiff for mesne profits ; the verdict was for the defendant generally.

This disposes of all the exceptions — only one of which, has been found to be good, that, to the admission of Bunyan Mathis’s interrogatories.

Ought we to grant a new trial on the score of the improper admission of these interrogatories ? The defendant’s counsel says not. He says that there was evidence enough over and above these interrogatories to have required the verdict to be as it was ; and that as there was no motion for a new trial, the case does not fall within the new trial Act of 1854, and therefore, that this Court must be governed by the common law rule, which forbids a verdict to be disturbed on the ground of illegal evidence, if there was sufficient legal evidence.

This we think is a good argument, if it be true that there was enough evidence over and above these interrogatories to require this verdict.

Is that true ?

The plaintiff’s own evidence showed that he claimed under David Mathis who in his deed made in 1852, described himself as of Hamilton county, Florida.

The grant was to “ David Mathis of Dodge’s district, Appling county.” The testimony of several witnesses taken together traced up this David Mathis to the time of the suit, and showed him from 1826, or 1828, a citizen of some place in Georgia. It could not be, therefore, that it was he, who was the David Mathis of Hamilton county, Florida, in 1852, who made the deed under which the plaintiff claimed. It follows that that deed could convey no title.

Now the evidence, exclusive of Bunyan Mathis’s interrogatories shows this.

And this is enough to require of the jury to find for the defendant.

We think then, that the counsel for the defendant is right in insisting that there ought not, on the ground of the admission of this evidence, to be a new trial.

So we affirm the decision of the Court below.

Judgment affirmed.