McCook v. Alligood

• Citation: 113 S.E. 93,28 Ga.App. 812
• Decision Date: 24 July 1922
• Docket Number: 13194.
• Parties: MCCOOK v. ALLIGOOD.
• Court: Georgia Court of Appeals

113 S.E. 93

28 Ga.App. 812

MCCOOK v. ALLIGOOD.

No. 13194.

Court of Appeals of Georgia, Second Division

July 24, 1922

Syllabus by the Court.

Under the ruling announced in Sattes & Wimer Lumber Co. v. Hales, 11 Ga.App. 569, 75 S.E. 898, the jury was authorized to find a verdict for the plaintiff against the claimant in a proceeding to foreclose a laborer's lien under Civ. Code 1910, § 3335, upon property belonging to the claimant. While in the case under consideration no equitable amendment was filed by the plaintiff as in the case cited, yet, evidence in support of the plaintiff's claim, under the rule there laid down, having been admitted without objection, the plaintiff is entitled to the benefit of such testimony as if the amendment which would have been allowable, had been filed. Artope v. Goodall, 53 Ga. 319, 324(3); Field v. Martin, 49 Ga. 268 (3); Haiman v. Moses, 39 Ga. 708(3); Savannah, etc., Ry. Co. v. Barber, 71 Ga. 644 (2), 648; Central R. Co. v. Attaway, 90 Ga. 659(1), 16 S.E. 956. The superior court therefore did not err in overruling the claimant's certiorari.

It not appearing that the case was brought to this court for the purpose of delay only, the motion of the defendant in error that damages be assessed against the plaintiff in error is denied.

Error from Superior Court, Laurens County; J. L. Kent, Judge.

Action between A. McCook and J. J. Alligood, and from a judgment therein, the former brings error. Affirmed.

T. E. Hightower, of Dublin, for plaintiff in error.

S. P. New, of Dublin, for defendant in error.

STEPHENS, J.

Judgment affirmed.

JENKINS, P.J., concurs.