Murphey v. Creamer

• Decision Date: 29 February 1912
• Docket Number: (No. 3,341.)
• Citation: 74 S.E. 61,10 Ga.App. 593
• Parties: MURPHEY. v. CREAMER.
• Court: Georgia Court of Appeals

74 S.E. 61

(10 Ga.App. 593)

MURPHEY.

v.CREAMER.

(No. 3, 341.)

Court of Appeals of Georgia.

Feb. 29, 1912.

(Syllabus by the Court.)

Error from City Court of Richmond County; W. F. Eve, Judge.

Action by H. R. Creamer against George S. Murphey. Judgment for plaintiff, and defendant brings error. Affirmed.

Creamer filed a petition in the city court of Richmond county, in which he alleged that on January 10, 1908, he went into possession as the owner of a certain wood and coal yard in the city of Augusta formerly known as the wood and coal yard of S. M. McKendree & Co.; that prior to the date first mentioned it had been owned by the defendant Murphey, either in his own right or in connection with one Zachry; that the business, with all equipment and appurtenances, was sold to him by verbal contract for $2,400, payment to be made as the sales of the business would warrant, the defendant expressly agreeing not to press payments during the summer months; that the balance of the purchase money was to become due within a reasonable time after the summer months were past, and that delivery of the property was made to the plaintiff in accordance with these stipulations; that the plaintiff paid $1,465 on the purchase price, leaving only an unpaid balance of $935 of the purchase price; that on July 29, 1908, the defendant came to the plaintiff's place of business and forcibly took possession of the wood yard and all of the equipment and appurtenances, and the stock of wood and coal, over the protest of the plaintiff's agent and without any authority of law; that the property thus seized by the defendant was worth $2,400, and that by reason of its appropriation the plaintiff claims damages in the sum of $1,500. The petition alleged, also, that the premises were rented by the plaintiff from one Parks, and that the invasion of the premises in violation of the plaintiff's right to the same was a willful and malicious trespass, by reason of which the plaintiff was damaged in the sum of $250.

Another paragraph of the petition alleged the issuance of a possessory warrant by the plaintiff for the recovery of certain personal property, including the door key and a bunch of keys which had been seized by the defendant, and the award of the property under the possessory warrant to the plaintiff, whereupon the defendant sued out a writ of certiorari, which he thereafter allowed to be dismissed. It was also alleged that, after the decision of the magistrate in favor if the plaintiff, the defendant swore out a possessory warrant against the plaintiff before one Bennett, a justice of the peace, alleging that the property which was in his (the defendant's) own possession was at that time in the possession of the plaintiff, and that this possessory warrant was sworn out solely for the purpose of affording the basis for a plea that the property described in the possessory warrant issued at the instance of the plaintiff was in the possession of a constable of Bennett's court. The plaintiff charged that the certiorari proceeding was a malicious use of legal process, without probable cause, made for the purpose of delaying the plaintiff in the assertion of his legal rights, and to retain possession of the keys and books, so as to fortify the defendant in the seizure of the defendant's business.

The plaintiff also claimed damages in the sum of $500, for malicious prosecution instituted by the defendant against him upon an accusation for trespass, and damages of $1,000, for profits which he would have received in the natural course of trade, of which he was deprived by reason of the trespass, seizure, and dispossession at the hands of the defendant.

A demurrer to the plaintiff's petition, to which reference will be made hereafter, was overruled, but no exceptions were filed. The defendant's plea denied each and all of the several paragraphs of the petition, and was amended so as to allege that what the defendant claimed was a sale was merely a proposition to sell, that no completed contract of sale was ever made, and that the plaintiff's possession of the property in question was merely as agent for the defendant. The plea also alleged that there was probable cause for the issuance of the warrant, and that all the acts of the defendant were in good faith, and not actuated by malice, and, moreover, that the alleged contract was violative of the statute of frauds. Upon the trial the jury rendered a verdict In favor of the plaintiff, for $1,000 actual damages and $250 punitive damages.

E. H. Callaway, for plaintiff in error.

Wm. H. Fleming, for defendant in error.

RUSSELL, J. (after stating the facts as above). [1] By the demurrer to the petition, which was overruled, the defendant asserted: (1) That the petition sets out no cause of action. (2) That the petition is multifarious, joining in one suit more than one cause of action, and joining separate and distinct causes of action arising out ofthe separate and distinct transactions occurring at different times and at different places. (3) That there is a misjoinder of causes of action in this: That the alleged cause of action set out in paragraphs 1, 2, and 3 is ex contractu, and the alleged cause of action set out in paragraphs 4 to 6 is ex delicto, and the cause of action in paragraph 7 is ex contractu. (4) That it affirmatively appears that the personal property referred to in paragraph 1 was not the property of the plaintiff, and that the alleged contract of sale was void. (5) That the separate cause of action set out in paragraph 4 is vague and indefinite, and the statement of fact therein sets out no cause of action. (6) That the allegations in paragraphs 5 and 6 set forth no cause of action against defendant (7) That the petition and the allegations in paragraph 5 do not set out a cause of action, or state facts entitling the plaintiff to damages, because the defendant sued out the certiorari therein referred to. (8) That the facts set out in paragraph 6 do not set out a cause of action. (9) That the allegations in paragraph 7 do not set out a cause of action against the defendant. The allegations are* vague, indefinite, and insufficient in law to constitute a cause of action. (10) That there is a misjoinder of causes of action, actions ex contractu and ex delicto being joined in one petition.

It is not necessary to rule upon the merits of any of these grounds of the demurrer, for no exception was taken to the judgment overruling it, and thereby the ruling upon the demurrer, whether right or wrong, became the law of the case. Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446, 58 S. E. 93. The disposition of the demurrer only rendered it obligatory upon the plaintiff to prove the statements of his petition, in order to make out a prima facie case. Applying the doctrine of res judicata, as laid down in the Lovelace Case, supra, as well as in Georgia Northern Ry. Co. v. Hutchins, 119 Ga. 510, 46 S. E. 659, Ray v. Anderson, 117 Ga. 136, 43 S. E. 408, Savannah, Florida & Western Ry. Co. v. Renfroe, 115 Ga. 774, 42 S. E. 88, and Roberts v. Ivey, 63 Ga. 623, to the 10 grounds of the demurrer in the case at bar, it will be seen that several of the grounds of the motion for a new trial were practically eliminated and present nothing for our consideration. This process of elimination applies to numbers 2, 18, and 19, alleging that the verdict is contrary to law and the principles of equity and justice, No. 5, as to what constitutes a valid consideration, No. 6, as to the definiteness of the terms of the contract, No. 7, as to payments being made out of proceeds of the property conveyed by defendant to plaintiff, and No. 8, as to the time when payments were to be made and the source from which the money was to be derived.

2. Several of the grounds of the motion for new trial complain of the admission of testimony, and state the reasons why the testimony objected to should not have been admitted. None of these assignments of error present anything for the consideration of this court, nor did they present anything for the consideration of the trial court at the hearing of the motion for new trial, for the reason that it does not appear that any objection now presented was made before the court at the time of the ruling complained of. The statement in an assignment of error that certain testimony is objectionable, and is now objected to for reasons therein stated, cannot be considered, unless it affirmatively appears that the trial court ruled upon precisely the same objections, and that his judgment upon these objections was error. Nothing is better settled than that the distinct ground of objection to testimony must be clearly presented, and that, in default of an explicit statement of the ground of objection at the time the objection is interposed, the incorrectness of the court's ruling is immaterial, because no ruling has been properly invoked or required. Soell v. State, 4 Ga. App. 340, 61 S. E. 514. Where the point upon which a ruling is invoked in this court does not affirmatively appear to have been properly before the trial judge for his consideration, it is not error of the judge, when passing upon a motion for a new trial, to disregard this ground of the motion entirely, because defective. "A ground of a motion for a new trial, assigning error upon the admission of certain quoted testimony over the objection of the movant, without stating what the objection was upon which the trial judge ruled, is so incomplete that this court cannot pass upon it." McCray v. State, 134 Ga. 416, 68 S. E. 62, 20 Ann. Cas. 101. This ruling disposes of the objections here urged to the admission of the possessory warrant proceedings sued out by Murphey against Creamer, and to the possessory warrant sworn out by Creamer against Murphey, and the statement of Billings which Creamer was permitted to testify to.

3. In the third ground of the motion for a new trial...