Beall v. Francis

Russell, C. J. 1. Even though the petition had not been verified at all until the day set for the hearing upon the application for an interlocutory injunction, it was still amendable in this respect; and the court did not err in permitting the petitioner to verify the petition by making her affidavit to the effect that the statement of facts therein contained was true. 2. The exceptions to the admission of evidence are without merit. (а) The petitioner, who was the administratrix de bonis non cum testamento annexo of her mother, testified that she had made search for an alleged marriage contract executed in 1870, among all the papers of the testatrix, and was unable to find it, and that she believed it was not in existence but had been either lost or destroyed. It appearing from the record that both parties to the alleged marriage contract were dead, the court did not err in admitting, as secondary evidence of the contents of such paper, a certified copy of a record in the office of the clerk of the superior court of the county in which the maker of the instrument died. Civil Code, § 5759. (b) “In order to the introduction of secondary evidence of the contents of a lost paper, it is only necessary to establish a reasonable presumption of its loss or destruction; and this presumption is held to be established, when the party shows that in a reasonable degree he has exhausted all the sources of information and means of discovery, which the nature of the case suggests, and which were accessible to him.” Harper v. Scott, 12 Ga. 125; Ellis v. Smith, 10 Ga. 252; Molyneaux v. Collier, 13 Ga. 406; Bryan v. Walton, 14 Ga. 185. 3. The petition as a whole was not subject to general demurrer and consequent dismissal. The cause of action was laid in two counts; and even though it were conceded that the first count was for any reason demurrable, the second count was not subject to the alleged infirmities which the demurrer sought to attack, and of itself sufficiently set forth a good cause of action. 4. Upon conflicting evidence the discretion of the judge of the superior court in the granting of an interlocutory injunction will not be interfered with, unless there is a manifest abuse. In the present ease, as the administratrix stood in the place of her intestate, it was not error for the court by the grant of an interlocutory injunction to maintain the status quo of the real estate involved until an adjudication of the rights of property therein. [895] No. 5248. March 1, 1927. Hardwick & Adams and A. B. Wright, for plaintiff in error. M. L. Gross and J. J. Harris, contra. 5. The interests of creditors, if any, in the estate which the administratrix of the decedent claims may be protected at the trial by appropriate intervention on their part. Judgment affirmed. All the Justices eoneur, except Atkinson and Bines, JJ., dissenting, and Bill, J., absent for providential cause.