BELL v. FELT

Supreme Court of Georgia1904-02-13

119 Ga. 498

Summary · law.co

Holding. The judgment granting a new trial is affirmed because the trial judge properly exercised discretion in granting a general new trial, and a subsequent bill of exceptions cannot restrict the scope of an unrestricted order.

The court addressed whether the trial judge properly excluded certain testimony from a witness for the defendant. The defendant sought to ask the opposing party questions regarding an alleged agreement that would have established the lawfulness of taking mules under a conditional arrangement. The court found that the assignment of error was properly raised because cross-examination questions directed at a hostile witness need not be accompanied by a statement of what the witness would have answered, particularly when counsel is seeking to uncover material facts or lay groundwork for other evidence. The excluded testimony was material because it would have shown the mules were taken pursuant to a mutual understanding, making the possession lawful rather than wrongful.

The trial judge granted a new trial in general terms without specifying a particular reason on the face of the order. Although a bill of exceptions later recited that the new trial was granted due to the exclusion of testimony, this subsequent notation could not restrict or limit the scope of the judge's unrestricted grant. Under established precedent, appellate courts will not overturn a trial judge's initial grant of a new trial in a lower court when the record does not demonstrate that law and facts mandated judgment for the plaintiff.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Admissibility of testimony excluded during cross-examination of opposing party
Standard for challenging exclusion of hostile witness testimony
Effect of bill of exceptions on scope of trial court's general new trial order
Appellate court deference to trial judge's grant of new trial

Procedural posture

The defendant appealed from a trial court's grant of a new trial, challenging the exclusion of certain testimony and arguing the new trial order was improperly limited by a subsequent bill of exceptions.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Lamar, J.

(after stating the foregoing facts.) The assignment of error on the judge’s refusal to permit Arnold, a witness for the defendant, to answer the questions propounded can not be considered, because it nowhere appears what his testimony would have been, nor whether the same would have been material or helpful. But this objection does not cover the assignment of error on the court’s refusal to permit Felt’s counsel to propound certain appropriate questions to Bell, the opposite party. The rule requiring a statement as to what the answer-would have been does not apply to those asked of a hostile witness, or to inquiries on cross-examination where counsel is sifting a witness, laying the foundation for other evidence, or seeking to discover material facts indicated by the question, and where the attorney does not know, or can not be. expected to know, what the witness would testify. The assignment of error, therefore, in the present case is well within the exception stated in Griffin v. Henderson, 117 Ga. 383. In fact the petition for certiorari complies fully with the spirit of the rule, and states not only the purpose of the question, but what tbe defendant expected to prove by his adversary. The evidence thus sought was material, tending as it did to show that Bell had agreed that if Felt did not approve of the exchange Arnold might come and get the mules, thus establishing as a fact that they had been taken in pursuance of a condition which made the subseqúent act of Arnold lawful instead of unlawful, there being in fact no force or violence by Arnold in taking the mules. He made a claim — hardly a demand — for their possession, and that was immediately acceded to by the driver. Indeed it appears that Bell in the first instance got possession of the mules by reason of the fact that the Indiana Fruit Company’s agent exceeded his authority in making the exchange. According to Bell’s contention, Arnold in like manner, without fraud or violence, got possession because-the driver voluntarily acceded to Arnold’s request.

The judge of the superior court rightly granted a new trial generally. The statement in the bill of exceptions that he did so because of the exclusion of certain testimony does not modify the unrestricted terms of the order. Felt had no cause to complain of the judgment as entered. He did not know of the recital in the bill of exceptions for the thirty days in which he was allowed to except, nor indeed until after the time within which he could have presented a bill of exceptions. The case is not, therefore, as argued by the plaintiff in error, similar to the grant of a new trial on one ground, which is in legal effect a denial of all others. Long v. Bullard, 69 Ga. 678; Singleton v. S. W. R. R., 70 Ga. 465. In those cases the order on its face showed the single ground on which the new trial was granted. Here the judgment is general. It is claimed that it was restricted by the subsequent recital in the bill of exceptions. This could not be done. The case therefore is within the well-established rule that this court will not interfere with the first grant of a new trial in a justice’s court, where it does not appear that the law and facts required a judgment in favor of the plaintiff below. Civil Code, § 5585.

Judgment affirmed.

All the Justices concur, except Simmons, G. J., absent.