Summerford v. Kinard

• Decision Date: 20 September 1910
• Docket Number: (Nos. 2,319, 2,320.)
• Citation: 68 S.E. 955,8 Ga.App. 253
• Parties: SUMMERFORD v. KINARD. KINARD v. SUMMERFORD.
• Court: Georgia Court of Appeals

68 S.E. 955

8 Ga.App. 253

SUMMERFORD

v.KINARD.

KINARD

v.SUMMERFORD.

(Nos. 2, 319, 2, 320.)

Court of Appeals of Georgia.

Sept. 20, 1910.

(Syllabus by the Court.)

1. New Trial (§ 139^*)—Waivek of Service of Motion.

One who appears at the time and place set for a hearing of the motion for a new trial and orally agrees to the brief of evidence filed with the motion, but who, after the judge has corrected and approved the brief of evidence, moves to dismiss the motion for a new trial for want of service, can properly be held to have waived any formal service of the motion.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 279; Dec. Dig. § 139.*]

2. Trover and Conversion (§ 16*)—Title to Support Action—Right of Possession.

The evidence was sufficient to show such constructive delivery of the chattel as to complete the sale and pass title to the plaintiff. However, even if there was doubt upon this point, the evidence of the plaintiff's right of possession was sufficient to authorize a recovery in trover.

[Ed. Note.—For other cases, see Trover and Conversion, Cent. Dig. §§ 119-147; Dec. Dig. §16.*]

Error from City Court of Sylvester; J. B. Williamson, Judge.

Action by E. B. Kinard against J. H. Summerford. Judgment for plaintiff and defendant brings error; plaintiff filing cross-exceptions. Judgment on main bill of exceptions affirmed, and cross-bill dismissed.

Perry & Foy, for plaintiff in error.

Claude Payton and C. E. Hay, for defendant in error.

RUSSELL. J. In the main bill of exceptions, error is assigned upon the judgment overruling a motion for a new trial; and by a cross-bill error is assigned upon the refusal of the trial court to dismiss the motion for a new trial for want of service.

1. We will first consider the cross-bill of exceptions. It appears from the record that at the hearing of a motion for a new trial which had been filed by Summerford, Mrs. Kinard, the respondent, moved to dismiss the motion "for want of sufficient service on her, there being no official entry of service of a copy of said motion on her, or of the rule nisi or other part of said proceeding, and no acknowledgment of such service and no written waiver of such service, which said motion to dismiss the court overruled on the ground that it came too late, it being made after counsel for both sides had orally agreed to the correctness of the brief of evidence, and after the court had approved the brief of the evidence and the amended motion for a new trial, and after the court had orally announced its decision on the motion for a new trial." However, the motion to dismiss was made before the court had written or signed its judgment on the motion for a new trial.

We think the court properly refused to dismiss the motion for a new trial. The only purpose of the service of a motion for a new trial is to give the respondent such timely notice as will enable him to prepare for the hearing and to enable him, if he can, to show cause why a new trial should not be granted. The motion in this case does not contain any statement that the respondent was less prepared to resist the motion for a new trial than he would have been if he had been duly served. Of course, service of a motion for a new trial is always necessary in order to give notice, but formal service may be waived, and in this case under the facts stated, we think it was waived. In an ordinary suit service may be waived by appearance and pleadings. In the case of a ...