Story v. Brown

• Decision Date: 12 June 1896
• Citation: 25 S.E. 582,98 Ga. 570
• Parties: STORY. v. BROWN.
• Court: Georgia Supreme Court

98 Ga. 570

25 S.E. 582

STORY.

v.BROWN.

Supreme Court of Georgia.

June 12, 1896.

Appeal—Questions Open to Review—Weight of Evidence—Trial—Offer of Evidence.

1. Where exceptions pendente lite were filed by a defendant to the allowance of an amendment to the plaintiff's declaration, and, after a verdict for the latter, a judgment of the trial court granting a new trial was brought to this court by the plaintiff, the defendant filing no cross bill of exceptions, which judgment was affirmed, with direction that the case be tried again upon a single issue of fact, it was too late, after another trial had in compliance with this direction, and resulting in another verdict for the plaintiff, which the trial judge refused to set aside, for the defendant to bring to this court for review the questions made in the original exceptions pendente lite.

2. This court will not grant a new trial upon the ground that the court below refused to allow a witness to answer certain questions, it not being stated nor otherwise appearing what the party by whom the questions were asked expected to prove in answer to the same.

3. There was evidence sufficient to warrant the verdict rendered by the jury upon the sole question of fact submitted to them under the direction heretofore given by this court in this case.and there was no abuse of discretion in refusing to set the verdict aside.

4. At the end of the opinion delivered in this case at the March term, 1894 (21 S. E. 522, 94 Ga. 289), an error was inadvertently committed in stating the reason why the judgment granting a former new trial was upheld. That judgment was affirmed because this court was unwilling to interfere with the discretion of the trial judge in granting even a second new trial upon doubtful and uncertain evidence.

(Syllabus by the Court.)

Error from superior court, Dooly county; W. H. Fish, Judge.

Action by J. L. S. Brown, administrator, against E. J. Story, to recover land. Prom a judgment for plaintiff, defendant brings error. Affirmed.

J. H. Martin, for plaintiff in error.

Busbee, Crum & Busbee, for defendant in error.

SIMMONS, C. J. This suit was filed at the March term, 1891, of Dooly superior court. At the September term, 1892, the plaintiff amended the declaration. The defendant demurred to the amendment, and the demurrer was overruled, and he then filed exceptions pendente lite to the overruling of the demurrer. The case was tried at the September term, 1893, and a verdict was rendered in favor of the plaintiff. Upon a motion for a new trial by the defendant, the court set the verdict aside, and the plaintiff excepted and brought the case to this court. This court affirmed the judgment, and directed that the case be tried again upon a single issue of fact; that is, whether there was a sufficient delivery of the deed from Brown to Bedgood. 94 Ga. 288, 21 S. E. 522. The ease was again tried at the November term, 1894, the jury returned another verdict for the plaintiff, and the defendant made a motion for a new trial, which was overruled, and he excepted. In the bill of exceptions he assigned error upon the exceptions pendente lite taken by him at the September term, 1891. The defendant in error contended in his argument before this court that this assignment of error was too late. We think the contention was well taken. Section 4250 of the Code declares that "no cause shall be carried to the supreme court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if It had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause. But at any stage of the cause, either party may file his exceptions to any decision, sentence or decree of the superior court; and if the same is certified and allowed, It shall be entered of record in the cause; and should the case, at its final termination, be carried by writ of error to the supreme court by either party, error may be assigned upon such bills of exception, and a reversal and new...