Barton v. Strickland

208 Ga. 163 (1951)

65 S.E.2d 602

BARTON v. STRICKLAND, by next friend.

17480.

Supreme Court of Georgia.

Submitted May 14, 1951.

Decided June 11, 1951.

Forester & Calhoun, for plaintiff in error.

Cain & Smith, contra.

WYATT, Justice.

Plaintiff in error has made several assignments of error in the record in the instant case, but only one is urged before this court, all others having been abandoned. It is urged that the judgment of the court below denying a new trial, was error for the reason that during the trial, plaintiff in the court below called one of the defendants as a witness for the purpose of cross-examination. Movant then attempted to cross-examine this witness, and plaintiff objected. The objection was sustained. This ruling is assigned as error before this court. In Scarborough v. Walton, 36 Ga. App. 428 (136 S. E. 830), cited with approval in Rainey v. Moon, 187 Ga. 712 (2 S. E. 2d, 405), it was said: "Under the act of October 14, 1891 (Ga. L. 1890-91, p. 78; Civil Code of 1910 § 5879), in the trial of all civil cases, any party may call an opposite party to the witness stand and cross-examine him, as though the witness had testified in his own behalf *164 and was being cross-examined, and may do so without entitling counsel for any opposite party or parties, as a matter of absolute right, to cross-examine the witness." See also Akridge v. Atlanta Journal Co., 56 Ga. App. 812 (194 S. E. 590), and Davis v. Wright, 194, Ga. 1 (2) (21 S. E. 2d, 88). Under the rules laid down in the cases above cited, plaintiff in error did not have an absolute right to cross-examine the witness sought to be cross-examined. Assuming, but not deciding, that it was a matter for the discretion of the court whether or not the cross-examination should have been permitted, we can not say that it has been shown that the trial judge abused his discretion in not permitting it to be done. Accordingly, the judgment of the court below denying a new trial was not error.

Judgment affirmed. All the Justices concur.