Levy v. Simmons

• Decision Date: 31 January 1871
• Citation: 42 Ga. 53
• Parties: WENDELL LEVY, plaintiff in error. v. LUCILLE C. SIMMONS,defendant in error.
• Court: Georgia Supreme Court

42 Ga. 53

WENDELL LEVY, plaintiff in error. v. LUCILLE C. SIMMONS, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

Trover. Nonsuit. Demurrer. Practice. Before Judge Johnson. Taylor Superior Court, October Term, 1870.

This was trover for a horse, by Simmons, against Levy. The pleas were the general issue, and that Levy had bought the horse from Simmons' agent. At the trial, there was no contest as to demand, or as to the value of the horse, nor as to plaintiff's having owned the horse. But the whole dispute was as to whether Levy had bought the horse from plaintiff. It was shown, by three witnesses, that one Davis had the horse; Levy agreed to buy it, at $200 00, to be paid in a few days; that he was to leave the money with one Sharp for plaintiff, and then go to Davis and get the horse; that he did not pay the money, but went to Davis, who had no authority to sell or swap the horse, and with him swapped another horse for plaintiff's; that Davis was insolvent, Levy knew it, and had been expressly told not to pay the money to Davis, and plaintiff never received any part of said $200 00, or other pay, for her horse.

Here the plaintiff closed. Defendant moved for a non-suit, but it was refused. And thereupon defendant demurred to the evidence of plaintiff, which demurrer was joined in by plaintiff, and the Court, then and there, gave judgment for the plaintiff. The Court then referred said case to the jury to ascertain plaintiff's damages. And thereupon defendant offered to prove, before the Court and jury, that the horse was defendant's. The Court refused to allow this evidence, remarking that the judgment on the demurrer concluded defendant, and that he would allow no proof, except as to the amount of damages which plaintiff had sustained. Plaintiff had a verdict for the value of the horse and hire.

The refusal of the non-suit and refusal to hear defendant's evidence as to his title, after judgment on the demurrer, are assigned as error.

Holsey & Colbert; M. Blandford, for plaintiff in error.

Wallace & Ross; R. J. Moses, for defendant, cited, as to the demurrer: 3 Backstone's Com., 372. And said joinder in demurrer was agreeing to leave the matter to the Judge: 13th Ga. R., 159, 229; 29th Georgia Reports, 696; Dudley, 209.

WARNER, J.

This was an action brought to recover the possession of a horse, and upon the trial thereof, after the plaintiff had closed his evidence, the defendant made a motion for a non-suit, which the Court overruled, and the defendant excepted. The defendant then demurred to the plaintiff's evidence, and there was a joinder in the demurrer by the plaintiff, and the Court, upon the hearing thereof, gave judgment for the plaintiff, to which the defendant excepted. The Court then referred the case to the jury to ascertain the plaintiff's damages, and thereupon the defendant offered to prove, before the Court and jury, that the horse in controversy was the property of the defendant, which the Court refused to allow him to do, on the ground, that he was concluded by the judgment on the demurrer, and said that no proof would be allowed before the jury, except as (o the...