Barnett v. Ashley, 34983
| Decision Date | 02 February 1954 |
| Docket Number | No. 34983,No. 2,34983,2 |
| Citation | 81 S.E.2d 11,89 Ga.App. 679 |
| Parties | BARNETT v. ASHLEY |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where the evidence on behalf of the plaintiff affirmatively shows that the right of action is barred by the statute of limitations, it is not error to grant a motion for nonsuit.
2. Errors on the admission or exclusion of evidence which would not change the scope and effect of the evidence admitted are no ground for the reversal of a judgment of nonsuit.
The plaintiff in error, Mary R. Barnett, as administratrix of the estate of her deceased husband, Frank Barnett, filed suit in the Superior Court of Greene County against the defendant in error, Seaborn Ashley, for the value of timber allegedly purchased, cut, and removed by the latter under a contract with the plaintiff's intestate about January 1, 1940. On a previous trial the plaintiff was nonsuited. The present action was brought within six months of the judgment of nonsuit and, on motion of the defendant's counsel the plaintiff, at the conclusion of her evidence, was again nonsuited. The plaintiff then sued out her bill of exceptions, assigning error on the grant of the nonsuit and on the exclusion of certain evidence.
O. J. Tolnas, Athens, for plaintiff in error.
Tipton & Tipton, Madison, Newell Edenfield, Atlanta, for defendant in error.
1. Counsel for the defendant in error in their brief contend that the nonsuit was properly granted because the plaintiff's evidence was insufficient to make out a case in the following respects: (a) she failed to prove that her intestate owned the timber which was the subject matter of the alleged sale, and (b) that the defendant cut any of the timber or received any of the proceeds thereof; (c) failed to prove any amount, so that there would not be sufficient evidence to support a verdict for any given sum; (d) failed to prove a contract sufficiently definite to be enforceable; and (e) the evidence demanded a finding that the action is in any event barred by the statute of limitations.
While the evidence is certainly weak and unsatisfactory in all of these respects, it will not be necessary to decide more than the last point raised, since, if the action is barred in any event, it becomes immaterial whether a prima facie case was otherwise made out. The record shows that any contract for the sale of timber made between the defendant and plaintiff's intestate was oral and took place in April or May, 1941; that timber was actually cut in July and August, 1941, by persons not parties to this action (whether or not by the direction of the defendant is not clearly shown); that the plaintiff's intestate died on August 11, 1946, and the estate was unrepresented until July 27, 1952; that a previous action brought by the plaintiff was nonsuited on October 27, 1952 and the present action filed on November 8, 1952, Code, § 3-808 provides that, if a plaintiff shall be nonsuited and shall recommence within six months, the renewed case shall stand as to limitation upon the same footing as the original case. Under Code, § 3-803, the time between the death of a person and representation taken upon his estate, not exceeding five years, shall not be counted against his estate. The only testimony as to the terms of the contract came from the son of the deceased, who testified that he heard an oral agreement between the deceased and the defendant that the timber would be sold to him for $8 per thousand on the stump; presumptively, therefore, payment became due and the limitation would run from the time of delivery. Northwest Atlanta Bank v. Willingham, 69 Ga.App. 258(2), 25 S.E.2d 154; Pope v. Barnett, 45 Ga.App. 59(3), 163 S.E. 517. The plaintiff's intestate died exactly five years from the time payment was presumptively due, therefore, and another six years elapsed before the plaintiff's appointment as administratrix of the estate.
The plaintiff contends that the statute of limitations was tolled against her because, during the period between the time of selling the timber and his death, the intestate was laboring under a disability within the meaning of Code, § 3-801, as follows: 'Infants, idiots, or insane persons * * * who are such when the cause of action shall have accrued, shall be entitled to the same...
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