Hieber v. Buchanan

Head, Justice. (After stating the foregoing facts.) In the bill of exceptions error is assigned on the refusal of the court to permit a witness to answer certain questions on direct examination. “In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that a pertinent question was asked, and that the court ruled out the answer; and that a statement was made to the court at the time, showing what the answer would be; and that such testimony was material, and would have benefited the complaining party.” Griffin v. Henderson, 117 Ga. 382 (43 S. E. 712); Colbert v. Pitner, 157 Ga. 690 (122 S. E. 315); Barron v. Barron, 185 Ga. 346 (194 S. E. 905); Page v. Brown, 192 Ga. 401 (15 S. E. 2d, 506). The assignments made in the bill of exceptions in this case in no instance measure up to the rule stated, and reversible error is not shown in the exclusion of the testimony complained of. Error is also assigned on the court’s refusal to permit witnesses for the defendant in error to answer certain questions propounded by counsel for the plaintiff in error on cross-examination. This assignment was insufficient, in that it failed to show the name of the witness or witnesses. Williams v. State, 186 Ga. 251, 260 (197 S. E. 838). Complaint is made of the exclusion by the court of certain evidence with reference to a modification of the lease contract, which [835] modification was alleged to have been entered into on December 28, 1946, or approximately fifteen days after the lessors of the plaintiff in error had been enjoined from alienating or transferring any interest in the building or in any of the leaseholds thereon. The evidence relied upon to show a modification was a copy of an alleged letter by counsel for the lessee to the lessors, stating the terms of a verbal understanding to reduce the rent to be paid by the plaintiff in error. Had the lessors agreed to a change or modification in the terms of the lease contract as to rent or any of the terms of the lease, such agreement would not be valid or binding upon the receivers, since such modification or change, if made, was after the grant of a restraining order. The exclusion of testimony as to an alleged new lease contract, or modification of an existing contract, under the facts of this case, was not error. The distress warrant procured by the receivers in the Civil Court of Fulton County was ordered by the trial judge to be transferred to the Superior Court of Fulton County. In the same judgment it is recited that testimony was heard and a judgment was rendered for the receivers for the full amount of the rent claimed to be due. It appears from the pleadings filed by counsel for the receivers, that the lessee, now plaintiff in error, had filed a counter-affidavit and made a bond. The issues of fact then made by the distress warrant, the counter-affidavit, and any pleadings filed by the parties amplifying their contentions, could only be determined by a jury trial. Code, § 61-404; McNeil v. Harker, 40 Ga. 26 (2); Girtman v. Stanford, 68 Ga. 178; Wright v. Hawkins, 68 Ga. 828; Brooke v. Augusta Warehouse & Banking Co., 119 Ga. 946 (47 S. E. 341); Andrews v. Sims, 27 Ga. App. 338 (108 S. E. 258); Beavers v. Mabry, 195 Ga. 175 (23 S. E. 2d, 672). Judgment reversed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.