McAlpin v. Ryan

Atkinson, J. 1. The Civil Code, § 5801, makes parties wholly incompetent to testify, only when adultery is the sole basis of a suit, action, or proceeding. AAHiere a husband instituted an action for damages ' in two counts, the first based on alleged alienation of the affections of his wife and the second on alleged criminal conversation with his wife, the defendant is a competent witness as to the -matters alleged in the first count and compellable to testify concerning any matters involved therein, except such as he may be excused from testifying about under the Civil Code, § 4554, which provides: “ No party shall [747] be required to testify as to any matter which may criminate or tend to criminate himself, or which shall tend to work a forfeiture of his estate, or which shall tend to bring- infamy or disgrace or public contempt upon himself or any member of his family.” But such party is not a competent witness to testify with respect to the criminal conversation as alleged in the second count. Arnold v. Arnold, 141 Ga. 158 (80 S. E. 652); Anderson v. Anderson, 140 Ga. 802 (79 S. E. 1124); Chandler v. Chandler, 145 Ga. 32 (88 S. E. 561); Whitehead v. Whitehead, 143 Ga. 285 (84 S. E. 580); Bishop v. Bishop, 124 Ga. 293 (52 S. E. 743) ; Griffin v. Griffin, 144 Ga. 192 (86 S. E. 536). No. 1935. December 16, 1920. Petition for prohibition. Before Judge Mcldrim. Chatham superior court. February 13, 1920. R. R. Richards, Saussy & Saussy, and Robert L. Golding, for plaintiff in error-. George H. Richter, contra. 2. “The word ‘witness/ as employed in the caption and the first section of the act approved December 20, 1898 (Acts 1898, p. 56), which amends section 5315 of the Code of 1895 (§ 5910 of the Code of 1910), relating to the taking of depositions, includes parties to an action who are competent and compellable to give evidence.” Creech v. Ossep, 140 Ga. 577 (101 S. E. 576). 3. Assignments of error not argued or otherwise insisted on in the brief of counsel of the plaintiff in error will he treated as abandoned. 4. Under the pleadings and the evidence the judge did not err in refusing the writ of prohibition to prevent the taking of depositions of the defendant as a witness for the plaintiff, before the commissioner, .under the Civil Code, § 5910. Judgment affirmed. All the Justices concur.