Reid v. Morrison

• Decision Date: 22 February 1924
• Docket Number: 14547.
• Citation: 121 S.E. 860,31 Ga.App. 613
• Parties: REID v. MORRISON.
• Court: Georgia Court of Appeals

121 S.E. 860

31 Ga.App. 613

REID v. MORRISON.

No. 14547.

Court of Appeals of Georgia, Second Division

February 22, 1924

Syllabus by the Court.

Upon the trial of an issue formed upon a plea to the jurisdiction of the court, based upon the ground that at the time of the institution of the suit against the defendant he did not reside within the county, where it appeared from the issue as made by the evidence that proof establishing the defendant's residence within the county at the time of the trial necessarily establishes his residence within the county at the time of the institution of the suit, thus establishing the jurisdiction of the court over him, a charge by the court to the effect that jurisdiction of the defendant attaches upon proof that at the time of the trial the defendant is a resident of the county, while inaccurate as an abstract statement of the law, was not error as applied to the issue upon trial, and therefore was harmless to the defendant.

(a) It being undisputed that the defendant and his family had before the institution of the suit moved into and occupied a residence within the jurisdiction of the court, and had since continued to occupy the residence, and was so doing at the time of the trial, but, it being contended by the defendant that when he moved into the jurisdiction of the court he left his citizenship behind him, and that while since then he had been living within the jurisdiction of the court, and at the time of the trial was so living, his legal residence was in another county, and without the jurisdiction of the court and, there being no evidence otherwise to the effect that the status as to the defendant's legal residence had changed from the time he moved into the jurisdiction of the court and the time of the trial, it necessarily follows that any inference which might be drawn that at the time of the trial the defendant's legal residence was within the jurisdiction of the court necessarily carries with it the inference that at the time of the institution of the suit his legal residence was within the jurisdiction of the court.

That portion of the charge quoted from Civil Code 1910, § 2181 which was based upon the hypothesis that the defendant had no family, while not strictly applicable to the issues made by the evidence, was nevertheless harmless to the defendant.

The evidence clearly made an issue as to whether the defendant resided indifferently at two places within the state, and also as to whether he habitually resided a portion of the year in one county and another portion in another, and the rules of law applicable to such issues were properly given in charge to the jury.

The evidence, taken in its entirety, authorized a finding that at the time of the institution of the suit the defendant resided within the jurisdiction of the court, and that therefore the court had jurisdiction over him.

A real estate broker may contract, as a condition precedent to earning his commission, to procure a contract of sale, or his undertaking may be simply to procure a purchaser ready willing, and able to buy, and who offers to buy, upon the terms stipulated by the owner. Civil Code 1910, § 3587; Wilmot v. Silverman, 26 Ga.App. 196, 105 S.E. 654; Humphries v. Smith, 5 Ga.App. 340, 63 S.E. 248.

A suit by the broker to recover his commissions alleged to be due is not a suit upon the contract of sale which he has procured between his principal, the owner of the land, and his customer, the purchaser, but is a suit upon the contract either express or implied, between the broker and...