Durden v. Henderson, 19527
| Decision Date | 15 January 1957 |
| Docket Number | No. 19527,19527 |
| Citation | 96 S.E.2d 362,212 Ga. 807 |
| Parties | Cleolas Brown DURDEN et al. v. Grover B. HENDERSON, Sr. |
| Court | Georgia Supreme Court |
J. C. McDonald, McDonald & McDonald, Fitzgerald, for plaintiffs in error.
Murphey Rogers, W. R. Mixon, Ocilla, for defendant in error.
Syllabus Opinion by the Court
G. B. Henderson, Sr., filed in the Court of Ordinary of Irwin County his petition to probate in solemn form the alleged nuncupative will of E. C. Henderson. The petition was filed against Cleolas Brown Durden, et al., the defendants named being all of the heirs at law of the deceased except the petitioner, who was his brother. The defendants filed their caveats, contending in substance that E. C. Henderson did not make the alleged nuncupative will; that at the time the alleged will was purported to have been made, deceased had opportunity to have the will reduced to writing; that he was not of sound and disposing mind and memory; that he had attempted to make a prior written will; and that the disposition alleged to have been made by the will was not a logical disposition. The case was duly appealed to the superior court. At the conclusion of the evidence for the propounder, the caveators moved for a directed verdict. This motion was denied. The case then went to a jury, and the jury returned a verdict in favor of the will. The plaintiffs in error within the time provided by law filed their motion for a judgment notwithstanding the verdict. This motion was denied. A motion for new trial was filed and overruled. The exceptions here are to the above enumerated judgments. Held:
1. The motion for a judgment notwithstanding the verdict can not be considered. 'This case is controlled by the ruling in Hines v. McLellan, 117 Ga. 845, 45 S.E. 279, in which this court unanimously held: 'When, at the conclusion of the evidence offered for the plaintiff, it appears that he has failed to make out a prima facie case, it is error to direct a verdict for the defendant on which final judgment can be entered; but the court should award a nonsuit, thereby reserving to the plaintiff the right to institute 'a subsequent action for the same cause,' if he so desires.'' Seymour v. Seymour, 210 Ga. 49, 50, 77 S.E.2d 433, 434. See also cases there cited. Since a motion for a directed verdict is a prerequisite to a motion for a judgment notwithstanding the verdict under Code Ann.Supp. § 110-113, and there was legal motion for a directed verdict in the instant case, the motion for a judgment notwithstanding the verdict cannot be considered.
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...notwithstanding the verdict must be premised upon a valid motion for directed verdict. See: Code Ann. § 81A-150(b); Durden v. Henderson, 212 Ga. 807(1), 96 S.E.2d 362. The complaint in this case was filed on June 29, 1972, and as no written contract was proven, all services rendered prior t......
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...verdict must have been a legal motion made at a time when the party making it had a right to have a directed verdict. Durden v. Henderson, 212 Ga. 807(1), 96 S.E.2d 362. 2. A motion for a directed verdict may be made by the defendant only after the defendant has introduced some evidence. At......
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...with the grounds of the antecedent motion for a directed verdict. Grigsby v. Fleming, 96 Ga.App. 664, 101 S.E.2d 217; Durden v. Henderson, 212 Ga. 807, 96 S.E.2d 362; Sunbrand Supply Co. v. Garment Finishing Equipment Corp., 99 Ga.App. 72, 107 S.E.2d 680. One of the grounds of the motion fo......
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