Carithers v. Maddox

• Decision Date: 21 October 1949
• Docket Number: No. 32643.,32643.
• Citation: 80 Ga.App. 230,55 S.E.2d 775
• Parties: CARITHERS. v. MADDOX.
• Court: Georgia Court of Appeals

55 S.E.2d 775

80 Ga.App. 230

CARITHERS.

v.MADDOX.

No. 32643.

Court of Appeals of Georgia, Division No. 1.

Oct. 21, 1949.

Thelma Maddox sued W. T. Carithers in trover to recover for the conversion of an automobile.

The Civil Court of Fulton County, J. Wilson Parker, J., rendered judgment for the plaintiff, and defendant brought error.

The Court of Appeals, Worrill, J., affirmed the judgment, and held that rulings on admissibility of evidence were proper and that the evidence sustained the finding as to the value of the automobile.

Syllabus by the Court

The evidence authorized the finding of the trial judge, and no error of law is shown by the amended motion for new trial.

W. Owen Slate, Chas. W. Bergman, Atlanta, for plaintiff in error.

Rache Bell, Atlanta, for defendant in error.

WORRILL, Judge.

This is the second appearance of this case in this Court. For a statement of the facts relating to the case see Maddox v. Carithers, 77 Ga.App. 280, 47 S.E.2d 888. Under the ruling made there the only issue before the court below upon a retrial of the case was the market value of the automobile in question at the time of the conversion. Upon the second trial the court rendered a judgment for the plaintiff for $912. The exception here is to the overruling of the defendant's motion for new trial.

1. The exception to the overruling of a motion to grant a nonsuit is not a valid assignment of error in a motion fora new trial and will not be considered by this Court. Don v. Don, 163 Ga. 31(3), 135 S.E. 409; Dickson v. Citizens Bank & Trust Co., 184 Ga. 398(8), 191 S.E. 379; Gibson v. Mason, 31 Ga.App. 584(1), 121 S.E. 584; Willis v. Seiberling Rubber Co., 44 Ga.App. 468(8), 161 S.E. 789.

2. The second special ground of the motion alleges error because the court refused to allow the defendant to answer the following question: "How did you get this automobile from her?" The exclusion of this testimony was not error for any of the reasons assigned. The defendant's showing in regard to this ground was that he would testify that he got the automobile from the plaintiff in a separation agreement between the parties entered into before the institution of the divorce case. This showing fails to sustain the claim of the defendant that this testimony was material to the issue before the trial court. Prior adjudications of the Supreme Court, Carithers v. Carithers, 202 Ga. 596, 43 S.E.2d 503, and of this Court, Maddox v. Carithers, supra, had established title to the automobile in the plaintiff, and her right to recover in a trover action, and we fail to see how it can be asserted that any transaction prior to the rendition of those judgments could have been material in the case as it stood before the trial court.

3. The third special ground of the motion complains because the court refused to permit the defendant to introduce in evidence a bill of sale to the automobile from the plaintiff to him. The exhibits in the record show that this bill of sale was executed prior to the rendition of the decree in the divorce case which adjudicated that the title to the automobile was in the plaintiff. This ground of the motion is without merit for the same reasons set forth in the preceding division of this opinion.

4. Special ground 4 of the amended motion for new trial is merely an elabor ation of the general grounds of the motion and will be considered with the general...