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WARE, administrator, v. MARTIN.
Equitable petition. Before Judge Perryman. Lincoln Superior Court. August 16, 1952.
WYATT, Justice.
1. The first special ground of the motion complains, first, that the jury was misled by the trial judge in stating to the jury the contentions of the parties and, next, complains that the judge expressed an opinion to the jury. The judge called to the attention of the jury the contentions of the plaintiff in the original petition, and then later directed the attention of the jury to an amendment that had been filed striking the name of a party mentioned in the original petition. This was entirely proper. It is contended that the trial judge, by use of the language "under and by virtue of that adoption," expressed an opinion that there had been an adoption. This language was used while stating the contentions of the parties and after the judge had fully stated to the jury the conditions under which the alleged contract was alleged to have been made, and is therefore not subject to the complaint made. It follows, this ground of the amended motion is without merit.
2. The second and third special grounds complain about several excerpts from the charge of the court. It would serve no useful purpose to set them out here. Suffice it to say that these excerpts, when considered in connection with the entire charge, are not subject to the exceptions made.
3. The fourth special ground complains because the court, over timely objection, admitted in evidence a notice appearing in a newspaper, the Lincoln Journal, dated March 27, 1937, reading as follows: "Martin Keeter. Mr. and Mrs. C. E. Keeter announce the marriage of their daughter, Miss Tinie Keeter, to Mr. J. B. Martin, the ceremony being solemnized in McCormick, May 21st." There was evidence to the effect that G. E. Keeter had stated, shortly after the marriage of his alleged adopted daughter, "I might as well put something in the paper and let people know about it." There was also evidence that, after the notice appeared in the paper, it was read to him by some member of the family at his request. The trial judge admitted the notice in evidence, with the statement that "1 am leaving it to the jury to determine whether or not Mr. C. E. Keeter ratified it." This was not error.
4. Special ground five is simply an amplification of the general grounds.
5. The evidence was sufficient to authorize the verdict.
1-4. These headnotes require no elaboration.
5. This case has now appeared before this court the fourth time. See Ware v. Martin, 207 Ga. 512 (63 S. E. 2d, 335), 208 Ga. 330 (66 S. E. 2d, 737), 209 Ga. 29 (70 S. E. 2d, 446), where a full statement of facts will be found that need not be again stated here.
The real question presented to this court in the case now under consideration is whether or not the evidence was sufficient to sustain the verdict. The answer to this question depends upon whether or not the evidence adduced upon this trial that did not appear in the former trials is sufficient to sustain the verdict, this court having held that the evidence in the former trials was not sufficient.
The evidence in this trial was substantially the same as in the former trials with this additional testimony: T. L. Keeter, among other things, testified as follows: "Tinie Keeter Martin is my sister. When my mother died I was between ten and eleven years of age . . . The Keeter Martin was a little over two years of age . . . I remember a transaction that my father and mother had with Mr. C. E. Keeter shortly before my mother died. Mr. C. E. Keeter and Mrs. C. E. Keeter, my uncle and aunt, came out to the house where my mother was, and I heard a conversation there between my father, Mr. John Keeter, and Mr. C. E. Keeter. My mother was on her deathbed. She knew she was going to die, and she asked Uncle Charlie Keeter and his wife, Aunt Joe Keeter, to adopt Tinie and raise her, and Uncle Charlie and Aunt Joe agreed to it (referring to Mr. C. E. Keeter and Mrs. C. E. Keeter when speaking of Uncle Charlie and Aunt Joe). Uncle Charlie said he would take Tinie, adopt her, and raise her just as he would his own child and would give her the best of care. My father, Mr. John Keeter, replied, 'Me and Mag agree to it,' and said, 'That is the only reason she didn't want to die as Tinie was so little and she didn't want to die and leave her. My father called my mother Mag, that being her name . . . We started to move to North Carolina, and my father said that Tinie could not go with us as they had adopted her to Uncle Charlie and Aunt Joe."
This evidence clearly and unmistakably shows a contract to adopt, and supplies every deficiency pointed out when the case was previously before this court. It is not seriously contended by the plaintiff in error that this evidence fails to show a contract to adopt, but it is contended that the evidence should not have been accepted by the jury and should not be accepted by this court as being sufficient for this purpose. It is contended, in the first place, that it is unreasonable to believe that a boy between the age of ten and eleven years could remember now the details of this conversation. No valid reason occurs to our minds why he could not do so. In any event, that is a question that addressed itself to the jury and the trial judge.
It is next contended that this evidence should not be accepted by this court for the reason the Witness, T. L. Keeter, gave as his reason for not testifying in the previous trial of this case, the fact that for three years he was So much under the influence of liquor that he was unable to testify. He stated further that, at the time of the trial now under consideration, he was entirely sober and had been continuously so for four months. We can not consent to the consigning to the rank of perjurers for the remainder of their lives all persons who have used intoxicating liquors to excess at some time in their lives. If we did so, as regrettable as it is, we would greatly add to the number of known perjurer in this country. Again this is a question that addresses itself to the judge and the jury, and not to this court.
Three times this case has been tried before a jury, and each time a verdict was rendered in favor of the defendant in error. Three times the trial judge has approved the verdict. The evidence as presented on this trial meets all the requirements of law, and no reason appears why this court should interfere.
It follows, there is no merit in any of the contentions of the plaintiff in error.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.
Earle Norman, contra.
L. C. Groves, Clement E. Sutton and Colley & Orr, for plaintiff in error.
Saturday May 23 04:29 EDT

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