Leathers v. Leathers

• Decision Date: 26 February 1909
• Citation: 63 S.E. 1118,132 Ga. 211
• Parties: LEATHERS v. LEATHERS.
• Court: Georgia Supreme Court

63 S.E. 1118

132 Ga. 211

LEATHERS v. LEATHERS.

Supreme Court of Georgia

February 26, 1909

Syllabus by the Court.

A motion for a continuance is addressed to the sound discretion of the court, and his judgment overruling the motion will not be disturbed, unless it appears that there was a manifest abuse of his discretion.

[Ed Note.-For other cases, see Continuance, Cent. Dig. §§ 17, 18; Dec. Dig. § 7; ^[*] Appeal and Error, Cent. Dig. § 3837; Dec. Dig. § 966. ^[*]]

Rulings made by a trial court upon questions made by objection to the pleadings of the parties furnish no proper ground for a motion for a new trial.

[Ed Note.-For other cases, see New Trial, Cent. Dig. §§ 24-27; Dec. Dig. § 18. ^[*]]

The court below did not err in repelling the evidence upon the exclusion of which error is assigned in the motion for new trial.

[Ed Note.-For other cases, see Deeds, Dec. Dig. § 199 ^[*]]

The verdict rendered was required by the evidence, and the court did not err in directing the jury to return the same.

[Ed. Note.-For other cases, see Trial, Dec. Dig. § 168. ^[*]]

The newly discovered evidence, upon which the amended motion is based, is not considered, because the affidavits of the movant and his counsel are not properly identified, nor are they embodied or referred to in the motion, nor attached thereto as an exhibit.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2374-2384; Dec. Dig. § 528. (FN*)]

Error from Superior Court, Douglas County; Price Edwards, Judge.

Action by W. A. Leathers against Mary Leathers. Judgment for plaintiff, and defendant brings error. Affirmed.

J. S. James, for plaintiff in error.

J. H. McLarty and H. W. Nalley, for defendant in error.

BECK J.

1. In her motion for a new trial the plaintiff in error complains of the overruling, by the court below, of a motion for a continuance, which was submitted when the case was called for trial. But it does not appear upon an examination of the evidence relied upon to support the motion that the court abused its discretion in refusing the continuance. The movant testified in reference to this motion that she did not feel able to go into the trial of the case; that she had not been well for some time, having been in bed four or five days before she left home for the purpose of coming to court, and she did not feel that she could do herself justice and assist in the trial of the case, as she ought to, so as to protect her own interests; that she had not been in such health for several months as would permit her to see her counsel so as to prepare the case for trial. But she also testified that "she was about as well as usual. She had been in very bad health for near six months, some time up, but a great time in bed." Her counsel stated in his place that he could not do justice to the case "in the present state of his client's health. She is an important witness, and, besides, I need her assistance in the trial. She has only one son, and he has been away most of the time, and I could not rely on him for any assistance in this case." In his statement he corroborated what his client had sworn in reference to her ill health, and, in addition, stated that his client had been sick for a long time, that she lived in Atlanta, and that he had not been able to confer with her so as to ascertain the necessary facts for the preparation of the case. This motion for a continuance was addressed to the sound discretion of the court; and, while it appears from the evidence in the record that the showing for a continuance was not without merit, still we cannot say that the court abused its discretion in overruling the motion. Not only did the movant state that she was about as well as usual, but it must also be remembered that she was present in court, and the trial judge had, while we have not, an opportunity of seeing the party, who was also a witness, of hearing her talk and testify, and of forming from his own observation an idea as to her physical condition of health and her ability to advise and counsel with her attorney. The showing made for a continuance upon the ground of the absence of a material witness was defective as appears from the record, in that it does not appear who the absent witness was, not even his name being given as appears from the record. All these circumstances being considered, we conclude there is no such manifest abuse of discretion as to require a reversal of the judgment of the court upon this ground.

2. The fifth ground of the motion is based upon the overruling by the court of a motion made by the defendant in the court below to dismiss the case. The motion thus overruled was urged upon the ground that "the only title the plaintiff relies upon is from Peter Leathers," and then adds that this relying upon Peter Leathers being in possession of the land at the time of his death is insufficient to entitle him to recover. This motion was in the nature of a general demurrer; and rulings of the court upon issues thus made should be attacked by exceptions filed pendente lite, with proper assignments of error therein, when the case is finally brought up, or by direct exceptions, if the bill of exceptions to the final judgment is tendered within time to make exceptions to the rulings in regard to the pleadings. Such a ruling furnishes no proper ground for a motion for a new trial. Turner v. Barber, 131 Ga. 444, 62 S.E 587. What we have just said above disposes also of the...