Dixon v. Evans
| Decision Date | 27 October 1937 |
| Docket Number | 26454. |
| Citation | 193 S.E. 470,56 Ga.App. 583 |
| Parties | DIXON et al. v. EVANS. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Where a distress warrant is issued and levied on personalty, claim and forthcoming bond therefor are filed by third party, and property is found subject on trial of claim and is advertised for sale, failure to produce personalty at sale constitutes breach of bond, and suit thereafter filed against principal and sureties on bond is not prematurely brought because defendant in distress warrant proceeding has filed a counter affidavit to proceeding after breach of bond and filing of suit.
An exception to the refusal to give a special requested charge could not be considered by reviewing court, where it was not shown that request was adjusted to pleadings and evidence that it was not covered by general charge, or that parties requesting charge were harmed by failure to give it, and where charge given was not sent up as part of record.
The refusal to grant a nonsuit will not be considered by reviewing court where it appears that case was submitted to and passed on by jury and that motion for new trial was made containing ground that verdict was contrary to evidence and without evidence to support it.
An order overruling a demurrer is not a proper ground of a motion for new trial, and an assignment of error on such a ground cannot be considered by reviewing court.
The statute requiring judges to write out their charges and read them to jury when requested to do so is mandatory, and failure to comply with such request was error requiring new trial, even though court rule provided that judge was not required to reduce charge to writing, since rule is in conflict with statutes, and in such cases statutes must prevail (Code 1933, §§ 24-106, 81-1102, 81-1103; Code Supp. § 24-3368).
Where new trial was granted because of error committed by trial court, it was not necessary for reviewing court to pass on sufficiency of evidence to support verdict.
Error from Superior Court, Jeff Davis County; L. E. Heath, Judge pro hac vice.
Suit between Anna Dixon and others and A. E. Evans, for use, etc. To review an adverse judgment, Anna Dixon and others bring error.
Reversed.
Wm. B Kent & Son, of Alamo, for plaintiffs in error.
Newt Gaskins, of Hazlehurst, for defendant in error.
Syllabus OPINION.
1. Where a distress warrant is issued and levied on personal property, and a claim and forthcoming bond therefor are made and filed by a third party, and the property is found subject on the trial of the claim and is advertised for sale but is not produced at the time and place of sale, such failure to produce constitutes a breach of the bond; and a suit thereafter filed against the principal and sureties on such bond is not prematurely brought because the defendant in the distress warrant proceeding had filed a counter affidavit to said proceeding after the breach on the bond had occurred and suit had been filed thereon.
2. The exception to the refusal of the court to give in charge to the jury the special request cannot be considered, as it is not shown that such request was adjusted to the pleadings and evidence, or that it was not covered by the general charge and the charge of the court was not sent up as a part of the record in this case, or that the defendants were harmed by the failure to give said request in charge.
3. A...
To continue reading
Request your trial