Clay v. Smith

• Decision Date: 21 July 1899
• Citation: 33 S.E. 963,108 Ga. 189
• Parties: CLAY et al. v. SMITH.
• Court: Georgia Supreme Court

33 S.E. 963

108 Ga. 189

CLAY et al.

v.SMITH.

Supreme Court of Georgia.

July 21, 1899.

APPEAL—REVIEW—OBJECTIONS TO INSTRUCTIONS—EXCEPTION TO JUDGMENT— LAW OF THE CASE.

1. When a portion of a charge is, in a motion for a new trial, in general terms, alleged to be erroneous, and the language thus complained of embraces two or more distinct propositions, at least one of which is abstractly correct, the ground of the motion relating thereto presents no cause for reversing a judgment denying a new trial.

2. An exception to a judgment overruling a motion for a new trial, or a designated ground thereof, is not strengthened by setting forth in the bill of exceptions specific objections to the action of the court complained of in the motion which were not presented to or passed upon by the trial judge.

3. The law of this case was settled by this court at the October term, 1895 (25 S. E. 757 97 Ga. 782), and the facts of it were settled at the trial now under review. There was sufficient evidence to support the jury's finding, and the court below did not abuse its discretion in refusing to set the verdict aside.

(Syllabus by the Court.)

Error from superior court, Glynn county; J. L. Sweat, Judge.

Petition by Ira E. Smith for a rule against W. H. Berrie, sheriff. Henry Clay was thereafter made a party. Judgment for Smith, and Clay brings error. Affirmed.

Spencer R. Atkinson, Atkinson & Dunwody, and Courtland Symmes, for plaintiff in error.

Ira E. Smith, D. W. Krauss, and Owens Johnson, for defendant in error.

LUMPKIN, P. J. At the October term, 1895, this court affirmed a judgment of the trial court overruling a demurrer to the plaintiff's petition. See 97 Ga. 782, 25 S. E. 757. Subsequently Clay, who was a claimant of the fund in the hands of the sheriff, was made a party, and the case proceeded to a trial on the merits, resulting in a verdict in favor of Smith, the other claimant. Clay made a motion for a new trial, which was overruled, and he excepted.

1. In the fourth, which is the only special, ground of this motion, a portion of the charge of the court is, in general terms, alleged to be erroneous. Without setting forth this particular extract from the charge, it is sufficient to say that it contained at least two propositions which are, in the abstract, correct statements of the law. This being so, the ground of the motion just referred to presents no cause for reversing the judgment denying a new trial. Anderson v. Railway Co. (Ga.) 33 S. E. 644.

2. In the bill of exceptions, counsel for the plaintiff in error undertake to set forth divers objections to the portion of the charge complained of in the fourth ground of the motion for a new trial, and to state...