Lenney v. Finley

Decision Date12 August 1903
Citation45 S.E. 317,118 Ga. 427
CourtGeorgia Supreme Court

Syllabus by the Court.

1. Where error is assigned on the overruling of a motion for new trial, in which no point is made on the form of the verdict of the jury, and the bill of exceptions recites the substance of the verdict, the writ of error will not be dismissed because the verdict is not specified or transmitted as part of the record.

2. Where judgment by default is rendered in a case in which the damages are not liquidated, the defendant is thereby concluded as to the truth of all the material allegations of the petition save as to the amount of the damages. Where the suit is for damages to the plaintiff's business and property, it is, therefore, error to allow the defendant to contest the plaintiff's claim of ownership of the business or property.

3. A witness cannot, without finally testifying from his recollection of the facts, swear from a written memorandum without showing that he made the memorandum or at some time knew it to be correct.

4. On the trial of an issue as to the amount of the plaintiff's income from a certain business, evidence as to his personal and household expenses and as to his financial condition is irrelevant.

Error from Superior Court, Fulton County; J. H. Lumpkin, Judge.

Suit by W. E. Lenney against James Finley. Judgment for defendant and plaintiff brings error. Reversed.

E. G Cabaniss, Jr., and J. R. Pottle, for plaintiff in error.

Lumpkin & Boykin, for defendant in error.


Suit was filed by Lenney against Finley for damages growing out of the tortious eviction by the former from premises rented by Finley for use as a photographic studio. The petition alleged that the plaintiff had been damaged in named amounts because of having to move and store his photographic outfit, because of injury to the same, and because of his business having been closed up for several months. The defendant filed no defense, and the case was marked in default. At the trial term he made an unsuccessful attempt to open the default, and the case was still in default at the time of the trial. The case proceeded to trial before a jury, and a verdict was rendered against the defendant for nominal damages and costs. The plaintiff moved for a new trial, the motion was overruled, and he excepted.

1. Upon the call of the case in this court the defendant in error moved to dismiss the writ of error upon the ground that the verdict of the jury was not specified in the bill of exceptions or transmitted by the clerk of the lower court as a part of the record.

The bill of exceptions does state that "a verdict was rendered against the defendant for the sum of one dollar and costs." No question is made as to the form of the verdict. Further than this, the verdict could be sent for by this court if the statement of it in the bill of exceptions were not sufficient. The motion to dismiss is obviously without merit, and must be overruled.

2. The principal question made by the motion for new trial is whether the judge erred in allowing the defendant to go into the question of the ownership of the business and property alleged to have been damaged. We are, therefore, called upon to decide what are the rights given a defendant by the Civil Code,§ 5073, which is as follows: "In all cases where the damages are not liquidated and a judgment by default is rendered, the plaintiff shall be required to introduce evidence and establish the amount of damages. The defendant may contest the amount of such damages before the jury, with a right to move for a new trial in respect to such damages and except as in other cases." Prior to the passage of the act of 1895, upon which this section is based, in all default cases except one the plaintiff had still to prove his case. Code 1882, § 3457; Hayden v. Johnson, 59 Ga. 105. The one exception was the case of suits on open accounts, where the writ or process had been served on the defendant personally; and in that case the plaintiff was "permitted to take judgment as if each and every item were proved by testimony." Under Civ. Code,§ 5078, in all cases except actions for unliquidated damages and suits on unconditional contracts in writing, when the defendant is in default, "the plaintiff shall be permitted to take a verdict as if each and every item and paragraph were proved by testimony." In other than the excepted cases the defendant in default is, therefore, in the position of having admitted every material allegation of the plaintiff's petition. The present case is, however, within the exceptions, being an action for unliquidated damages, and it is necessary to determine how suits differ from other suits with respect to the rights of the defendant in default. The Code section above quoted (5073) gives him the right to "contest the amount" of the ""damages." He has this right under the Code, but otherwise is in a position exactly similar to that of a defendant in default in a suit of different character. He is in the position of having admitted each and every material allegation of the plaintiff's petition except as to the amount of damages alleged. In fact, except as to the amount of damages, by the entry of the default "a judgment by default is rendered," and all that is left to be tried by the jury is the amount of the damages. In the present case the action was for damages to certain business and property. While the business and property were not expressly and distinctly alleged to be the property of the plaintiff, yet the allegations as to the business and the property and the construction of the whole petition show clearly that the plaintiff was seeking to recover...

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