Jarriel v. Savannah Guano Co.

Jenkins, P. J. Testimony without probative value, even though admitted without objection, will not support or sustain a verdict. Roesel v. Green, 28 Ga. App. 694 (1) (113 S. E. 35). Mere hearsay is without probative value. Whittle v. Citizens Bank of Ashburn, 29 Ga. App. 308, 309 (114 S. E. 920); Rabun v. Commercial Nat. Bank, 21 Ga. App. 43 (93 S. E. 524). But “where, in a claim case, it was admitted the defendant in fi. fa. was in possession of the land levied on at the time of the levy, any declarations made by the defendant up to the time of the levy and while in possession were admissible in evidence.” Rutledge v. Hudson, 80 Ga. 266 (6) (5 S. E. 93) ; Smiley v. Padgett, 123 Ga. 39 (50 S. E. 927). Furthermore, “the language of the witness that it was his ‘understanding’ as to certain facts, otherwise positively stated, can not be rejected as hearsay, but, without further explanation, will be taken as resting upon actual facts within the personal knowledge of the witness. Such a statement could have been tested on cross-examination, and, in the absence of any modification or explanation on further examination, or any exception after timely objection to such evidence, can not be disregarded.” Bull v. Carpenter, 32 Ga. App. 637, 639 (124 S. E. 381). Consequently, where on the trial of a claim to a certain crop of tobacco levied upon after maturity and gathering, it appeared that the defendant in fi. fa. was in possession at the time of the levy, and a witness testified that the defendant in fi. fa. told him at the time the note and mortgage ■ was taken that the crop raised on his place was his, and that he [73] (the witness) “understood all along that the crop was his” (the defendant’s in fi. fa.), there being no exception taken to such evidence, and no modification or explanation of the statement upon further examination, this court can not as a matter of law say that a verdict against the claimant was without evidence to support it. Decided May 18, 1925. B. G. Collins, B. W. Barnes, for plaintiff in error. H. C. Beasley, contra. Judgment affirmed. Stephens and Bell, JJ., concur.