Meunier v. Beck & Gregg Hardware Co, 24986.
| Decision Date | 22 October 1935 |
| Docket Number | No. 24986.,24986. |
| Court | Georgia Court of Appeals |
| Parties | MEUNIER. v. BECK & GREGG HARDWARE CO. et al. |
Syllabus by the Court.
1. "This court has no authority to decide whether the trial court erred in directing a verdict, when there is no specific assignment of error, either pendente lite, in the motion for new trial, or in the bill of exceptions, made upon such direction"; and an assignment of error that "the verdict is contrary to law and without evidence to support it" is not a specific assignment of error upon the direction of the verdict, but presents only the question of the sufficiency of the evidence to support the verdict.
2. No specific assignment of error was made in this case upon the direction of the verdict; and upon the issue whether one of the parties was a "laborer, " as that term is used in section 67-1801 of the Code of 1933, so as to entitle him to a laborer's lien, the verdict against such position must stand, although directed, where there is some evidence showing that plaintiff's real occupation was that of clerk in a hardware store, and at times the general manager of the store, requiring in its performance mainly mental effort, although there was evidence to the contrary.
3. A bill of exceptions will not be dismissed at the instance of a third party on the ground that he is a necessary party, unless he is interested in sustaining or reversing the judgment excepted to.
Error from Superior Court, Haralson County; J. R. Hutcheson, Judge.
Money rule proceeding by the Beck & Gregg Hardware Company against a sheriff, wherein F. V. Meunier and another intervened. To review an adverse judgment, after his motion for a new trial was overruled, named intervener brings error.
Affirmed.
Price Edwards, of Buchanan, for plaintiff in error.
Boykin & Boykin and Samuel J. Boykin, all of Carrollton, for defendants in error.
Beck & Gregg Hardware Company foreclosed a mortgage in June, 1934, given to it in 1926 by W. A. & F. H. Miller, who were operating the Tallapoosa Hardware Company. The mortgage covered the stock of goods in the Tallapoosa Hardware Company. F. V. Meunier, plaintiff in error, in August, 1934, foreclosed a laborer's lien against W. A. Miller, who operated the business, for services alleged to have been performed by him as a laborer for the firm. Both fi. fas. were levied upon the stock of goods covered by the mortgage and certain described lumber. Upon a sale by the sheriff the stock of goods brought $1,000 and the lumber $450. Beck & Gregg Hardware Company brought a rule against the sheriff to distribute the money. Meunier, plaintiff in error, and the City Supply Company, intervened in the money rule proceedings. The City Supply Company asserted its claim by reason of a bill of sale to the lumber executed to it by the Tallapoosa Hardware Company. Beck & Gregg Hardware Company filed a traverse to the laborer's lien claimed by Meunier, on the grounds that he was not a "laborer" within the meaning of the law and had been fully paid for all services rendered the Tallapoosa Hardware Company. An issue was formed on this traverse, and after the introduction of evidence the court directed a verdict in favor of Beck & Gregg Hardware Company and against Meunier. A judgment was then entered decreeing in favor of the claim filed by City Supply Company and giving the remainder of the money to Beck & Gregg Hardware Company. A motion for new trial was made by Meunier on the general grounds alone. Plaintiff in error strongly insists that there was sufficientcompetent evidence to sustain a finding in his favor, and with this we are inclined to agree. However, no error is assigned on the action of the judge in directing a verdict on the ground that there was an issue of fact which should have been submitted to the jury, and that for this reason the court was without authority to direct a verdict. In Cole v. Illinois Sewing Machine Co, 7 Ga. App. 338 (1), 66 S. E. 979, it is said: "This court has no authority to decide whether the trial court erred in directing a verdict, when there is no specific assignment of error, either pendente lite, in the motion for a new trial, or in the bill of...
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