Parker v. Medlock

• Decision Date: 27 June 1903
• Citation: 117 Ga. 813,45 S.E. 61
• Parties: PARKER. v. MEDLOCK.
• Court: Georgia Supreme Court

45 S.E. 61

117 Ga. 813

PARKER.

v.MEDLOCK.

Supreme Court of Georgia.

June 27, 1903.

NEW TRIAL — NECESSITY — REVIEW — DIRECT BILL OF EXCEPTIONS—AFFIDAVIT OF ILLEGALITY—TRAVERSE OF SHERIFF'S RETURN.

1. A party dissatisfied with a verdict can, without filing a motion for a new trial, properly bring to this court for review by a direct bill of exceptions any "ruling, order, decision, or charge" of the court below, which necessarily controlled the finding against the plaintiff in error. Van Epps' Code Supp. 1901, § 6241; Taylor v. Reese, 33 S. E. 917, 108 Ga. 379.

2. Though an affidavit of illegality upon the ground that the defendant had not been served and a traverse filed to the entry of service by the sheriff were tried together, it was erroneous to allow the defendant to testify, over proper objection, that the entry of service was untrue, when the sheriff had not been made a party to the traverse. The mere filing of the traverse and service of a copy of same upon the sheriff by a private individual did not make the sheriff a party thereto; nor did the taking of his interrogatories by the plaintiff in fi. fa. and the introduction of them in evidence on the trial constitute him a party.

(Syllabus by the Court.)

Error from Superior Court, Haralson County; C. G. Janes, Judge.

Action by S. J. Parker against R. O. Med-lock. Judgment for defendant, and plaintiff brings error. Reversed.

E. S. Griffith, W. F. Brown, and R. D. Jackson, for plaintiff in error.

Edwards & Ault, for defendant in error.

FISH, J. Judgment reversed. All the Justices concur.