Lundy v. Livingston

• Decision Date: 27 November 1912
• Docket Number: 4,265.
• Parties: LUNDY v. LIVINGSTON.
• Court: Georgia Court of Appeals

76 S.E. 594

11 Ga.App. 804

LUNDY v. LIVINGSTON.

No. 4,265.

Court of Appeals of Georgia

November 27, 1912

Syllabus by the Court.

In civil cases, the questions indicated by Penal Code 1910, § 859, for the purpose of testing the competency of jurors, may be propounded by the trial judge to each juror separately, or to the entire panel. Hilton & Dodge Lumber Co. v. Ingram, 135 Ga. 696, 70 S.E. 234.

An amendment to a petition will not work a continuance on the ground of surprise, in the absence of any allegation showing how and in what manner the defendant is less prepared for trial with the amendment allowed than he was before. Civil Code 1910, § 5714. The application for continuance on the ground of surprise in the present case was insufficient, in that it failed to show how or in what manner the defendant was less prepared for trial than he was before the amendment was allowed, and the showing was in other respects not up to the requirements of the statute on that subject. A. & B. R. Co. v. Douglas, 119 Ga. 658, 46 S.E. 867.

The contract for the breach of which damages were sought was mutually binding, and under its terms no demand was necessary for the delivery of the property described in the contract to the purchaser by the seller, as a condition precedent to the bringing of an action for damages by the purchaser for a breach of the contract. McNamara v. Georgia Cotton Co., 10 Ga.App. 669, 73 S.E. 1092.

There was no error in any of the rulings upon the admission of testimony as complained of in the motion for a new trial. The charge of the court was full and fair, presenting to the jury every issue of fact made by the pleadings and the evidence. No error of law appears, and the verdict is supported by the evidence.

Error from City Court of Ocilla; H. E. Oxford, Judge.

Action by J. K. Livingston against A. Lundy. Judgment for plaintiff, and defendant brings error. Affirmed.

McDonald & Grantham, of Fitzgerald, for plaintiff in error.

H. J. Quincey, of Ocilla, and Elkins & Wall, of Fitzgerald, for defendant in error.

HILL, C.J.

Judgment affirmed.