Tidwell v. Garrick , 149 Ga. 290 ( 1919 )

Hill, J.

(After stating the foregoing facts.) Whether the petition sets out two technical counts, or whether the alleged second count is merely an amendment to the original petition, is unimportant. The original petition separately and distinctly from the amendment, or second count, was a suit to recover rents from an alleged tenant, and did not seek to recover the land. By the defendant’s answer title to the land was put in issue and the suit was converted into an action for land. The amendment to the petition, or second count, sought, in effect, to recover the land, and the issues as finally presented were such as occur in actions for land.

The fourth and fifth grounds of the motion for new trial complain of the admission of certain testimony by the court, over objection, which permitted the defendants, George W. Garrick and his wife Mattie Garrick, to testify as to a parol contract for the land in controversy between J. A. J. Tidwell, the deceased, and the defendants. It is insisted by the plaintiff that the testimony of the defendants with reference to the parol contract for the land was improperly admitted, for the reason that the plaintiff, Mrs. Claudia Tidwell, was “the personal representative” of the deceased, J. A. J. Tidwell, and therefore that they were not competent to testify as to that matter. Subsection 1 of § 5858 of the Civil Code of 1910 provides: “Where any suit is instituted or defended by a person insane at the time of the trial, or by an indorsee, assignee, transferee, or by the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the insane or deceased person, as to transactions or communications with such insane or deceased person, whether such transactions or communications were had by such insane or deceased person with the party testifying or with any other person.” The question is whether the plaintiff is the “personal representative” of the deceased. If so, it seems clear that the.opposite parties, who in this case are George W. Garrick and his wife, Mattie Garrick, would not be permitted to testify in their own favor to establish an alleged contract between them and the deceased. In Johnson v. Champion, 88 Ga. 527 (15 S. E. 15), this court held: “A widow whose husband died intestate after the passage of the act of December 12, 1882 (Acts 1882-3, p. 47), leaving no lineal decendants, is, in the absence of evidence that he left debts which are still unpaid, entitled to his whole estate without taking out letters of administration ^thereon. And being so entitled, she is his 'personal representative/ and in a suit against her by one claiming to be a creditor of her husband, the plaintiff is not a competent witness to establish an alleged contract between himself and the deceased out of which the alleged indebtedness arose.” Civil Code of 1910, § 3931; Willis v. Bonner, 136 Ga. 720 (71 S. E. 1048). In the circumstances above stated, and under the rulings made in the cases cited, the defendants were not competent to testify as to statements made to them by the intestate, which were relied on to show the parol contract which was the basis of their claim; and the court therefore erred in admitting such testimony over the objection made. Kramer v. Spradlin, 148 Ga. 805 (98 S. E. 487). Nor were the defendants competent to testify as to the alleged contract, under the facts of this ease, by reason of subsection 6 of § 5858, supra, which reads as follows: “In all cases where the personal representative of the deceased or insane party has introduced a witness interested in the event of a suit, who has testified as to transactions or communications on tbe part of the surviving agent or party with a deceased or insane party or agent, the surviving party or his agent may be examined in reference to such facts testified to .by said witness.” It is true that the plaintiff, who was the personal representative of the deceased, was introduced as a witness in her own behalf, and she testified on direct examination, without objection so far as the record discloses, as to facts not connected with the alleged parol contract between the deceased and the defendants, and on cross-examination the witness disclaimed hearing any conversation between the deceased and the defendants in which the deceased stated that he had given the land in controversy to the defendants. We do not think that this would bring the witness within the provisions of subsection 6 of § 5858, supra, so as to permit the defendants to be examined in reference to the alleged contract between the deceased and the defendants.

3. The headnotes, other than the one dealt with, require no elaboration.

Judgment reversed,.

All the Justices concur.