City Of Cartersville v. Maguire

• Decision Date: 08 January 1890
• Citation: 84 Ga. 174,10 S.E. 603
• Parties: City of Cartersville v. Maguire.
• Court: Georgia Supreme Court

10 S.E. 603

(84 Ga. 174)

City of Cartersville

v.Maguire.

Supreme Court of Georgia.

Jan. 8, 1890.

Limitation of Actions—Objections to Evidence.

1. It is not«clearly apparent on the face of the declaration that some of the damages claimed were barred by the statute of limitations; but if this did appear, there being a cause of action set forth for damages not barred, it was too late to demur specially to the former at the trial term, the objection not being one which would be available in arrest of judgment.

2. The rule that objections to evidence, admitted over objection, must appear, applies to the present case, even if the evidence complained of was not admissible.

8. The evidence, though conflicting and some of it obscure, warranted the verdict, if the jury so believed.

(Syllabus by the Court.)

Error from superior court, Bartow county; Milner, Judge.

J. B. Conyers, for plaintiff in error. E. D. Graham and W. M. Murphy, for defendant in error.

Bleckley, C. J. The declaration was filed June 2, 1881. A copy of it appears in Maguire v. Mayor, etc., 76 Ga. 84. The decision then made was upon demurrer, and it was held that a cause of action was alleged. That decision is the law of this case, whether erroneous or not, and the main question for determination now is whether the material facts embraced in the declaration were sufficiently proved at the trial to warrant the jury in finding a verdict for damages in favor of the plaintiff.

1. Before we get to that question, however, we have to dispose of two others, the first of which is whether the court erred in not sustaining a demurrer to so much of the declaration as complains of damages sustained more than four years prior to the bringing of the suit. We think it does not appear upon the face of the declaration that damages were claimed for any period antecedent to January, 1878. True, previous dates are mentioned at which the plaintiff was lawfully seised and possessed of the premises, but it was added that "the said the mayor and aldermen of the city of Cartersville afterwards, to-wit, on the day and year aforesaid, at, to-wit, in the county aforesaid, constructed, cut, kept up, and maintained a certain ditch upon and along said Church street, and to said Tennessee street and a certain other ditch long said Tennessee street, to said Church street, and, in the digging and excavation of said ditches, threw up and maintained and kept up embankments along the center of said streets, * * * and constructed, kept up, and maintained upon and over said ditches, and upon said streets, and adjacent to and adjoining said lands of your petitioner, several culverts, under-drains, bridges, and embankments, and built and constructed, and kept up and maintained, divers other works, by reason whereof the waters, " etc. All these acts are referred to "the day and year...