Moore v. McAfee

Beck, P. J.

(After stating the foregoing facts.)

1. One ground of the motion for a new trial assigns error upon the granting by the court of an order making B. H. Bay a party defendant upon the trial of the ease, without his consent and over the objection of the administrator of Mrs. Bay, and without notice or rule nisi to B. H. Bay. Objection to such an order should have been made the subject of direct exception; error upon the same can not be properly assigned in a motion for new trial.

i. Error is assigned upon the ruling of the court in admitting in evidence an order appearing upon the minutes of Crawford superior court at September term, 1876, and which contains the recital that it was made in the case of Smith, administrator of Culverhouse, v. .Moore, being a bill to marshal assets; and the further recital that it appeared to the court from the bill that the only asset of the estate remaining was the land described in the bill, which recital was followed by an order of the court that the administrator sell the land at public outcry, after due advertisement, and bring the money into court for distribution. This order was objected to upon the *274 ground that it did not describe the land in controversy nor describe any land, and did not furnish authority to the administrator to sell any land, unless it was accompanied by the bill of the administrator in which the land was described. The court did not err in admitting this evidence over the objection made. There is a presumption that the administrator acted upon the order in connection with the bill, and that the bill sufficiently described the land.

6. Exception is taken to the ruling of tile court in permitting the plaintiff as a witness in the case to testify as follows: “ There was a general tradition in the neighborhood as to there being a Grant Mill Place and as to what the Grant Mill Place consisted of. It was in the southeastern part of this county in the 6th district. Deep Creek runs through part of it. Toteover runs between 30 and 35. I got this information to start with from maps, but mainly from Wiley Patterson. He gave me general information of the land, and Frank Mathews and Billie Mathews gave me the location and told me where the line was, and Mr. Becham and Mr. Nichols. Mr. Becham is dead; so is Nichols. Billie Mathews is dead. These were old settlers in that community. Billie Mathews lived on the west of lot 35, adjoining I think on the lot adjoining 35.” This testimony was objected to upon the ground that a tradition can not be proved in that way; that the evidence did not show a tradition as to the boundaries of the Grant Mill Place, did not specify any particular boundary or evidence of any boundary of any particular tract of land. The court refused to rule out any evidence, upon motion of movants, when the plaintiff closed his evidence. In- deciding this case when it was formerly here it was said by this court: “ In locating land described in a deed as being composed of lots and parts of lots of land numbers 29, 30, and 35 in the 6th district of a named county, known as the fold Grant Mill Place,’ it is competent to establish its boundaries by proof of traditionary reputation in the neighborhood, derived from ancient sources or from the declarations of persons since deceased who had peculiar means of knowing what the reputation of the boundary was in an ancient day; but present-day reputation is not admissible.” McAfee v. Newberry, 144 Ga. 473 (87 S. E. 392). Under that ruling the testimony quoted was admissible. Though the evidence may not have contained a complete description of the lands contained in the Grant Mill Place, it did1 tend to show certain facts tending to establish the identity of the *275 Grant Mill Place. Whether other evidence in the case completed the description, or not, is another question.

11. Another ground of the motion for new trial is based upon the contention that the court expressed an opinion in the presence of the jury upon certain evidence in the case. These remarks (the court addressing plaintiff’s counsel) were: “You have made Mr. Ray a party, and, so far as the evidence developed, he is in adverse possession against the administrator, and it is not disputed New-berry is not in possession or any claim to the property.” And addressing the administrator of Mrs. Emma M. Ray, the court stated: “'How about filing a disclaimer for Mrs. Ray’s estate? You are not in possession and never have been.” The administrator replied: “The plaintiff never has been.” The court: “But he is seeking to recover from the person who is in possession, and that seems to be B. H. Ray. He is trying to get possession, and you are not asking for possession.” Reply by the administrator, Mr. Moore: “ I am trying to make him let me alone. The plaintiff has not shown he was ever in possession of an inch of it in his life.” The court: “ I think I will have to submit that to the jury; the Supreme Court held that.” These remarks were made by the court to the counsel in a colloquy between the court and counsel for plaintiffs in error. Tt is unnecessary to go into the record and determine whether or not the opinion expressed by the court was upon any contested issue of fact. Plaintiffs in error can not, in a motion for new trial, avail themselves of the remarks made by the court under the circumstances attending the use of the expressions complained of. Section 4863 of the Civil Code provides that a new trial shall be. granted where the court expresses or intimates his opinion as to what has or ■has not been proved. But where the court makes such an expression bf opinion in .ascertaining the position or opinion of counsel as to what has or has not been proved, or the effect of certain evidence, and does so before beginning his charge to the jury, and where the-remarks made are entirely disconnected from the charge, as they were here, a party will not be permitted to allow the remarks to pass unchallenged until after the case has been submitted to the jury and a verdict adverse to him returned, and then seek to avail himself of them in a reviewing court. While remarks addressed to counsel in this way may be cause for a new trial, as provided in the statute just referred to, nevertheless counsel'himself should take *276 some steps to avoid the hurtful effect, by making a motion for a mistrial or asking the court to instruct the jury to disregard the remarks; but a party can not remain quiescent until after verdict and then avail himself of the remarks made by the court, in a motion for new trial, where the verdict is adverse. Of course, if the expression or intimation of the court’s opinion occurs during his charge to the jury, while they may have no more hurtful effect than if they had been made in a colloquy between the court and counsel, nevertheless, as counsel could not well, in the midst of the charge, except to the remarks and move for a mistrial, he may avail himself of the remarks made in the course of the charge in his motion by making it one of the grounds thereof, although no motion for a mistrial was made. There are eases in our reports where it has been held that certain remarks complained of as containing an expression of opinion by the court were not ground, for a motion for new trial, because not used in a charge to the jury, but were made in the course of a colloquy between the court and counsel; and while it is not expressly said in any of these cases that if the remarks were hurtful a motion for a mistrial should have been made, the conclusion reached by the court must have been based upon the principle above announced.

The rulings made in headnotes 2, 3, 5, 7, 8, 9, 10, and 12 require no elaboration.

Judgment affirmed.

All the Justices concur.