Flewellen v. Flewellen

• Decision Date: 13 December 1901
• Citation: 40 S.E. 301,114 Ga. 403
• Parties: FLEWELLEN. v. FLEWELLEN.
• Court: Georgia Supreme Court

40 S.E. 301

114 Ga. 403

FLEWELLEN.

v.FLEWELLEN.

Supreme Court of Georgia.

Dec. 13, 1901.

NONSUIT.

The awarding of a nonsuit is erroneous when the evidence for the plaintiff authorizes a finding that he has proved his case as laid. (Syllabus by the Court.)

Error from superior court, Monroe county; E. J. Reagan, Judge.

Action by Henry Flewellen against Ed Flewellen. Judgment of nonsuit was affirmed by the superior court on certiorari, and plaintiff brings error. Reversed.

Persons & Persons, for plaintiff in error.

J. B. Williamson and Cabaniss & Willingham, for defendant in error.

FISH, J. The record in this case shows that Henry Flewellen sought, as a laborer, to foreclose liens in the city court of Forsyth against Ed Flewellen and certain described property of the latter; that, upon the trial of the issues raised by defendant's counter affidavit, the plaintiff testified in detail to the truth of every averment in his affidavit: that at the conclusion of plaintiff's testimony, and in the absence of any demurrer to his affidavit, the court, on its own motion, awarded a nonsuit upon the ground "that plaintiff had not made out such a case, either by his pleadings or his evidence, as would authorize the issuance of a laborer's lien under the statute"; that the plaintiff excepted to this ruling by certiorari to the superior court; and that the certiorari was there overruled. Error is assigned in the bill of exceptions upon the overruling of the certiorari. The only question necessary to be decided is controlled by the unanimous ruling made by the court in Reeves v. Jackson, 113 Ga. 182, 38 S. E. 314, which was followed in Strouse v. Kelly, 113 Ga. 575, 38 S. E. 957, where it was held, "A motion to nonsuit presents the single question whether or not the evidence introduced in behalf of the plaintiff, assuming it to be true, proves his case as laid." Of course, the judge of the city court was not, authorized on his own motion to award a nonsuit in a case where he could not have legally done so had the defendant moved for one. Whether the averments in the plaintiff's affidavit were sufficient to show that under the statute he was entitled to laborer's liens, and was properly proceeding to foreclose them, could not be determined on a motion to nonsuit; for, as Judge Bleckley remarked in Anderson v. Pollard, 62 Ga. 51, such a motion "is aimed at the evidence as compared with what the declaration is, not at the declaration as compared with what it ought to be." In each of the cases cited supra from 113 Ga., 38 S. E., it was apparent that the judge, in sustaining the motion to nonsuit, based his ruling upon the idea that, under the facts alleged and...