Glore v. Akin

• Decision Date: 14 October 1908
• Citation: 62 S.E. 580,131 Ga. 481
• Parties: GLORE et al. v. AKIN.
• Court: Georgia Supreme Court

62 S.E. 580

131 Ga. 481

GLORE et al.

v.AKIN.

Supreme Court of Georgia.

Oct. 14, 1908.

1. Trial—Verdict—Legality.

Where suit was brought jointly against two defendants for malicious prosecution, and a verdict was rendered against them for a stated amount, "to be equally divided between them, " this was in effect a several verdict for one-half the amount stated against each of the defendants, and was not legal.

[Ed. Note.—For cases in point, see Cent. Dig vol. 46, Trial, § 788.]

2. Same—Correction.

The illegality of such a verdict could not be cured by writing off one half of the finding and entering up judgment for the other half jointly against both defendants.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 799.]

3. Judgment—Motion in Arrest.

A verdict having been returned and a judgment entered as indicated in the preceding head-notes, on motion duly made the judgment shouldhave been arrested and the verdict have been set aside.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment §§ 484-487.]

(Syllabus by the Court.)

Error from Superior Court, Cobb County; Moses Wright, Judge.

Action by Luther Akin, by his next friend, against W. H. Walters and H. A. Glore. Judgment for plaintiff, and defendants bring error. Reversed.

J. Z. Foster and J. E. Mozley, for plaintiffs in error.

Griffin & Attaway, for defendant in error.

LUMPKIN, J. Luther Akin, by his next friend, brought an action for malicious prosecution against W. H. Walters and H. A. Glore jointly, alleging a conspiracy and concert of action on their part. On the trial the jury found the following verdict: "We, the jury, find for the plaintiff against the defendants, Glore and Walters, $300.00, to be equally divided between them." A motion was made to arrest the judgment and set aside the verdict. Plaintiff's counsel wrote off from it the sum of $150, and agreed that the verdict and judgment should be for $150 against the defendants jointly. The court thereupon overruled the motion, and judgment was entered according to the agreement. To this exception was taken.

The suit was brought jointly against two persons, seeking to recover damages for malicious prosecution, the joint action of both. The rule allowing the jury to apportion damages among trespassers (Civ. Code 1895, § 5915) has been held to apply to cases of trespass on property, and not to cases of the character of this one. McCalla v. Shaw, 72 Ga. 458; Hunter v. Wakefield, 97 Ga. 543, 25 S. E. 347, 54 Am. St. Rep. 438; Hay v. Collins, 118 Ga. 243, 44 S. E. 1002.

The several verdict found against the defendants could not be cured by reducing it to one-half the amount and changing it to a joint verdict. It may be said that the defendant was not hurt, because the verdict found against him in the sum of $150, and under the change made by counsel and allowed by the court no more was adjudged against him. Verdicts for excessive...