Carter & Ford v. Brown

• Decision Date: 20 April 1908
• Docket Number: 974.
• Citation: 61 S.E. 142,4 Ga.App. 238
• Parties: CARTER & FORD v. BROWN.
• Court: Georgia Court of Appeals

61 S.E. 142

4 Ga.App. 238

CARTER & FORD v. BROWN.

No. 974.

Court of Appeals of Georgia

April 20, 1908

Syllabus by the Court.

The evidence demanded the verdict, and there was no error in refusing a new trial.

Error from City Court of Nashville; H. B. Peeples, Judge.

Action by Carter & Ford against J. T. Brown. Judgment for plaintiffs. On levy of execution Belinda Brown interposed a claim. Judgment for claimant, and plaintiffs bring error. Affirmed.

Hendricks & Christian, for plaintiffs in error.

Buie & Knight, for defendant in error.

RUSSELL J.

A fi fa. against J. T. Brown and in favor of Carter & Ford was levied on certain personal property which was claimed by Mrs Belinda Brown. The jury rendered a verdict in favor of the claimant, and finding the property not subject to the plaintiffs' judgment. Thereupon the plaintiffs moved for a new trial, which was refused, and they now except to the judgment refusing a new trial.

Besides the general grounds, error is assigned in the motion for new trial on various excerpts from the charge of the court. Regardless of the fact that it was not asked or ordered that the charge of the court in full be transmitted to this court (by reason of which this court is unable to judge whether the language excepted to was qualified by other language used in the charge), the errors assigned upon these excerpts are immaterial, for the reason that, under the undisputed evidence in the case, the jury could not properly have returned another verdict than that rendered. There was no evidence that the buggy and the two-horse wagon which were levied upon had ever been the property of the defendant in fi. fa. The heat of the battle, as far as it went, arose over the question whether the iron gray mule "Pet," belonged to the claimant, Mrs. Belinda Brown, or to her husband, the defendant in fi. fa. J. T. Brown. This mule was the only article levied upon as to which there was any evidence tending to show that the title to the property had ever been in the defendant in fi. fa. And as to this, the salesman from whom the mule was purchased testified that the defendant in fi. fa. told him at the time he was purchasing the mule that he was buying it for his wife. All that was testified to by the next two witnesses for the plaintiffs in fi. fa. was that they had never heard that the mule was the property of the claimant, and, that according to their recollection, certain notes, given for the payment of the mule, were signed by the defendant in fi. fa. individually. No matter what result the jury might have reached, if no other testimony had been offered by the plaintiffs in error, the verdict of the jury was fully authorized by the evidence given by the claimant herself. And she was introduced by the plaintiffs in fi. fa. as a witness. The testimony introduced by the plaintiffs in fi. fa. which tended to show that the property should be subject to the levy of the fi. fa. was circumstantial, but perhaps would have sustained a verdict finding the property subject, but, when the plaintiffs in error introduced Mrs. Brown, she explained to the satisfaction of the jury every circumstance which had previously been presented, and which was damaging to her claim. According to her testimony, her husband, the defendant in fi. fa., had no property and paid no taxes except his poll tax, and, being her general agent, had bought the property levied upon merely as her agent. If the plaintiffs in fi. fa. had proved anything by the interrogatories of their prior witnesses, they explained the circumstances referred to by them by direct evidence, which demanded a finding in favor of the claimant. A new trial will not be granted for errors in the charge when the evidence demands the verdict rendered.

The plaintiffs in fi. fa. complained of the charge of the court that "the issue in the case, gentlemen, is: "Was this property at the date of the rendition of the judgment upon which this fi. fa. is based to wit, in February, 1905 the property of J. T. Brown, or was it the property of Belinda Brown? That is the issue that you are to try." The error assigned is that it limited the title to the property to the month of February, 1905, and it is contended that the court should have charged the jury that if they believed that the defendant J. T. Brown owned the property levied upon at any time between the date of the judgment and the levy, the property would be subject. After a review of the evidence, we find no error in this instruction, because there is no evidence that the defendant owned the property subsequent to the date of the judgment, or at the time of the levy. The testimony of ...