Cothran v. Forsyth , 68 Ga. 560 ( 1882 )

Jackson, Chief Justice.

The motion for a new trial in this case is based on three grounds : First, that the claimant was not permitted to conclude the argument; secondly, that the court gave erroneous charges to the jury; and thirdly, that certain evidence was rejected.

1. There was no error in rejecting the evidence. Part of it was objectionable, being the hearsay of another person, not a party, and the rest objectionable because it was the witness' sayso about the intention of his father, without giving any facts to show that intention.

2. There was no error in awarding the conclusion of the argument to the plaintiff in execution. Under the facts, it was in the discretion of the court to permit the plaintiff in execution to interrogate further the claimant who had offered as a witness for himself, and not to consider him when re-interrogated by request the witness of the plaintiff. So far from that discretion having been abused in this case, under tfce facts here disclosed, it would have been abused if the court had made him the witness of the plaintiff. The facts are that the witness, being the claimant himself, had been examined and cross-examined, and was called down from the stand, and claimant closed for the present. The plaintiff’s counsel, after conference among themselves, then said to the court; “We will introduce no evidence, we desire to recall Captain Cothran (the claimant) for a moment to ask him some questions which we ha-ve omitted.” The court replied, “Very well.” Claimant’s counsel made no reply, and thereupon the claimant was recalled, and the questions asked without objection of any sort by the claimant on the witness stand or his counsel.

These facts make it too plain, it seems to us, for serious question that when the claimant was recalled to be asked omitted questions, by leave of the court and without objection by his own counsel or himself, at the very moment that the plaintiff announced “ we will introduce no evidence,” that he was recalled as his own witness still. The plaintiff had the right to put him up as his, the plaintiff’s, .witness without any leave from the court, or acquiescence from the claimant. If he had intended to offer his adversary as his witness, he would not have asked the leave to recall him, nor would he have said at the very time he asked leave to recall him, “we will introduce no evidence.” What sort of child’s play, what nonsense to say, “we will introduce no evidence,” and straightway to'introduce it! It is clear, therefore, that plaintiff did not intend claimant when recalled to be his witness. The very language, to recall, indicated to have him again on the stand as he was before he left it. The very leave he asked, the announcement he made when he asked it, all show his, the plaintiff’s, intention.

How was it with the claimant? Why did he not object, if he intended to regard the witness as plaintiff’s witness, when he knew that his adversary regarded him as his own? Is it fair that he shall sit silent and acquiesce in the leave to recall, and then claim himself to be the witness of the adversary when recalled? Nay, more, shall he go on and participate in the renewed examination of himself, and thus, bj- acts as well as silence, approve of the leave of the court to the recall, and afterwards claim “I am the witness of the other side and not my own” ? Does not fair dealing estop hinq from setting up such a claim ? Will any court tolerate such ambushing? Justice always stands in an open field, and should not permit fighting under cover by any of the combatants in her tournaments. Batteries may play as rapidly and powerfully as brain and tongue can pour out canister and grape, but they must unmask when Justice watches the contest in order to crown the victor in a fair fight.

Yet, in this case, after all this acquiescence, it is gravely argued that the claimant himself masked himself and ambushed so successfully as to make himself his opponent’s witness to cover himself from all attacks upon himself tending to impeach him at all, and to turn his opponent out of his strong position to conclude the argument, a position won át the sacrifice of all his own witnesses, and take that position himself, because the court let his opponent ask him questions omitted when he was up. It is gravely argued that he thus managed to turn himself into his adversary’s witness by this skilful deploying under cover, and that a court that would not allow him to consummate the end of this skilful maneuvre has abused discretion. We cannot think so.

That all this conduct of a cause in the nisi prms court rests in the discretion of the judge, see 14 Ga., 242; 19 Ib., 220; 20 Ib., 156; 45 Ib., 283. The last case is relied on by plaintiff in error; but the court say there: “It would be improper for this court to interfere with the discretion of the court below in the conduct of a cause on such a point.” Whilst therefore in that case the court agreed with the court below which refused the recall of the witness, it did not disturb the well established doctrine that the matter rested in the discretion of the presiding judge. There the objection was made to the recall of the witness, and it was not allowed and the court was affirmed in not allowing it done ; but there was in that case no acquiescence by the other side, no announcement that “we will introduce no evidence,” no ambuscade, but an open objection and a fair fight. Had this been that case, the ruling would have been the other way; and the court would-not only not have interfered with the discretion of Judge Brown, but would have approved its exercise.

3. The third ground to be considered is in respect to the charge and refusal to charge. While put in many forms, the objections analyzed amount to but three at farthest. The main one is that the court would not rest the case on insolvency of the donor alone at the time of the gift to wife and children, but also brought under it the other issue, whether the deed of gift was made with intent to defraud, hinder or delay creditors. The court most clearly was right. Such is the Code, section 1952. Such is the principle ruled often by this court. It is enough to cite the Powell and Westmoreland case, 59 Ga., 256; 60 Ib., 572.

4. The next is that the court charged to the effect that if a donor be considerably in debt at the time he makes a deed of gift to his family, then the burden is upon him to show that' the transaction is valid — not only that he was then solvent but that then there was no intention to defeat creditors. He must show himself amply solvent when he made the deed of gift. We see no error in the charge. 25 Ga., 684; 17 Ib., 220; 1 Story’s Eq., 362, 363; Bump, on Fraud. Con., chap. 11, pp. 286, 294, 295. The words “amply solvent” are thus sustained.

In regard to the onus, it is enough to say that when claimant admitted possession in the defendant in ft. fa. in his own right, he admitted enough to condemn the property until he showed title in the claimant. He took the burden, and that burden was to show a clean title out of the defendant as an individual into the claimant as trustee.

To make the conveyance to wife and children such clean title, he had to show solvency, and if considerably in debt, ample means to pay what he owed to remove the presumption of intent to defraud or delay creditors— enough means to satisfy the jury that he did not have such intent, in connection with the other circumstances of the case. If his solvency or insolvency were a close question, as in this case, ' then the task would be more difficult to show a clean deed of gift, and if that deed were made when he had lost heavily on a venture in cotton, then it would seem almost impossible to convince the most credulous that such intent did not prompt the gift, especially if the donor himself had received it from his father months before, had not had it made then to wife and children, did not then make it himself, but waited until the cotton losses were already heavy.

5. The evidence supports, if it does not require, the verdict, and the presiding judge having approved it, we do not interfere.

Judgment affirmed.

Cited for plaintiff in error: 41 Ga., 196; 58 Ib., 451, 510; 59 Ib., 71; 60 Ib., 572; 61 Ib., 629; 45 Ib., 283; 3 M. and W., 505; 14 Ib., 95; Bump on Fraud. Con., 194; 3 Barb., 110; 17 Ga., 217; 64 Ib., 57, 352, 447, 582, 761, 63 Ib., 22, 85; Code, §1952; 25 Ga., 686; Story Eq., 362; 11 Wheat., 199; 1 Day (Conn.) 525; 53 Ga., 155; 59 Ib., 256; 60 Ib., 572; 56 Ib., 369; Bump on Fraud. Con., 295: 6, 540, 562; 12 Ill., 166; 9 Pet., 220; 18 Wend., 375; 3 Gratt., 26; 37 Me., 397; 34 N Y., 386; 8 Wall., 370; 3 B. & A., 262; 7 Ire., 341; 61 Ga., 373; Bump on Fraud. Con., 388, 327; 28 Ga., 174; Bish. on Law of Mar. Women, 757; 15 Ill., 101; Schouler’s Dom. Rel., 282-3, note; 53 Ill., 186; 2 Heisk., 343; 59 Ga., 436; 60 Ib., 119; 61 Ib., 280; Code, §3715; 12 Ill., 166; 24 Ga., 211; Code, 3739, 3753; Burr, on Ass., 340.

For defendant: 14 Ga., 242; 19 Ib., 220; 20 Ib., 156; 25 Ib., 684. 17 Ib., 220; 1 Story Eq., 362, 363; Bump on Fraud. Con. chap, 11, pp. 286, 294-5, 284-5; 59 Ga., 485; 6 Ib., 265.

Speer, Justice, concurred, but furnished no written opinion.