Thrasher v. Anderson

McCay, Judge. We think, after a careful examination of the record in this case, that the principles of justice require another trial. The verdict cannot, in our judgment, be legally sustained, except on the evidence of imposition by the defendant in procuring the receipt from the testator, when he was incompetent to contract. We do not say this is the truth, but that it must have been only on that point that the jury acted. There is some evidence to sustain the verdict on that issue, and we should hesitate to disturb it, under the rule we have so often announced, had that-branch of the ease been fairly before the jury. Very much of the strength of the plaintiff’s case turned on the evidence of W. H. Thrasher. Had Mr. B. H. Thrasher been present, the papers in his possession and. his knowledge of this witness’ conduct in relation to his testimony would have enabled the defendant seriously to weaken the effect of this testimony before the jury. It is made very apparent by the affidavits in the motion for new trial that the absence of Mr. B. H. Thrasher was providential, and though it may be that the Court did not err in refusing the continuance, with the evidence before him at the time, yet it is now very clear that the defendant was seriously damaged by his absence, and that he was kept away by causes which justified his remaining at home. Under sections 3662 and 3667 of the Code a new trial ought to be granted when the principles of justice require it. As we view the case, the defendant, without any fault of his own, has been deprived of material testimony upon the principal point on which his case must, under the law, have turned, as well as lost the aid before the jury of the principal counsel on which he relied. Nor is the counsel to blame for his absence. For this reason we think a new trial ought to be granted. We say nothing about the effect of the alteration of the receipt on the minds of the jury. We will not presume that [544] they failed to heed the charge of the Judge. It has been assumed, on both sides in the argument, that the verdict turned largely on the evidence before the jury of the alteration in the receipt, and were the verdict not sustainable on the ground we have mentioned, we should be very slow to let it stand on the proof, as to the alteration. The rule is well settled in this State that alterations are, prima fade, presumed to have been made before execution, unless the paper be denied on oath: 17 Ga., 558; 31 Ga., 371; 36 Ga., 482. If the alteration be subsequent to the execution, and be to a material point, and be intentional by one claiming a benefit under it, with intent to defraud the other party, it is void : Code, 2801. There are some other provisions of the Code, (sections 2803, 3782,) from which it may be argued that, in all cases, the burden of explanation is upon the party producing the paper. But these clauses are to be understood of alterations, apparent upon the paper, to have been made after the execution. They are not, in fact, alterations, if made before. If made after, as sometimes is apparent from inspection, the party producing the paper must show that the alteration was not intentional, or bring it within some of the exceptions provided in section 2801 of the Code. The case in 17 Georgia, 558, is perfectly consistent with these sections, and lays down the rule as we have stated. If this rule means anything, it is that, unless it appear affirmatively that an apparent alteration was made after execution, it is not to be considered. It is absurd to say that, prima fade, the presumption is one way, but the jury may, at their pleasure, treat this presumption as of no weight. As we understand the rule, there must be something to rebut the presumption— something on the face of the paper or in the aliunde proof, going to show that the alteration was made subsequent to the execution. We see nothing in the evidence going to show this. The paper has, without doubt, been altered, perhaps in several important particulars. But who can say, from the evidence, [545] that it was done after it was signed ? What evidence there is, is all in favor of the paper being just as it was when signed. Every mark upon it, showing change, may just as well have been made, with the free consent of the maker, at the time of the signature as afterwards. Nothing is more common in this State than alterations and interlineations in deeds and other papers. Since the decision of the ease in 17 Georgia, 558, even lawyers often allow papers, prepared by themselves, to be altered before signature. And why not? The burden of showing that the alteration was made after execution is upon the objector, and no harm comes of it. Whether the rule is a wise one, is not the question. It is enough that the rule exists, and is to Be heeded not only by Judges, but by juries also. It was not competent for the jury to find this verdict on the ground that this paper showed upon its face that certain words in it had been changed from one thing to another, unless the evidence also showed that the change was made after the paper was signed. That was the legal effect of the ruling of the Court, and, as we have said, it was not competent for the jury to disregard it. The paper goes before them with a presumption that the alteration was before the signing. That presumption is good until it is rebutted. We put our reversal on the first ground, because we have no right to presume that the jury disregarded the charge of the Court. They may have found on the ground of imposition upon a man too weak to know his own mind, and as that branch of the case was not fairly before the jury, we think the defendant below ought to have a rehearing. Judgment reversed.