Flournoy v. Wardlaw

• Decision Date: 30 September 1881
• Citation: 67 Ga. 378
• Court: Georgia Supreme Court
• Parties: Flournoy, Hatcher & C0mpany. vs. Wardlaw.

67 Ga. 378

Flournoy, Hatcher & C0mpany. vs. Wardlaw.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Practice in Supreme Court. Practice in Superior Court. Landlord and Tenant. Actions. Debtor and Creditor.

Before Judge Willis. Muscogee Superior Court. November adjourned Term, 1880.

Reported in the decision.

Samuel B. Hatcher, for plaintiffs in error.

T. W. Grimes; M. H. Blanford, for defendant.

Craweord, Justice.

1. When this case was called, a motion was made to dismiss the same, because there was no certificate of the judge below that the grounds contained in the motion for a new trial were true. The certificate of the judge was that the grounds set forth in the motion for a new trial were the grounds taken on trial as stated.

This is not such a verification as the law requires. The grounds of a motion for a new trial must be certified to be true, and not that they were the grounds taken. They may have been the grounds taken on the motion for a new trial, and yet not have been true and the motion for that very reason may have been overruled. Had the certificate of the judge stated that the grounds set forth were the grounds taken on the trial before the jury it would have been good. It must affirmatively appear by the judge's certificate on the motion itself or by an affirmative recital in the bill of exceptions that the grounds taken are true, or they cannot be considered by this court. Neither construction nor implication will be resorted to to cover this defect, the verification must be positive. 59 Ga., 295, 436, 653; 58 Ib., 56; 48 Ib., 425. The questions made otherwise than in the motion not certified by the judge to be true will be considered.

2. Elmira Wardlaw brought her action of trover to recover certain cotton in the possession of Flournoy, Hatcher & Co., and which she alleged that they had unlawfully converted to their own use. The evidence showedthat her husband had rented some land from, and was the tenent of, one Wardlaw. The rent was to have been paid in cotton raised on the land. After the crop was "laid by" in August, the husband died and it was agreed by the landlord and the said Elmira that she gather the crop and take the benefit of the contract of the husband therein. The cotton in dispute was a part of the said crop which her children and herself had picked and placed in the gin-house of the said Wardlaw. He had it ginned, packed and carried to the city of Columbus, where, by mistake, it was thrown off in the warehouse of the defendants, who refused to return it when notified that the delivery there was wholly unintentional.

The defendants received and treated the cotton as Wardlaw's, who was indebted to...