Tingle v. Kelly
| Decision Date | 05 July 1956 |
| Docket Number | No. 1,No. 36194,36194,1 |
| Citation | 93 S.E.2d 773,94 Ga.App. 138 |
| Parties | Miss M. A. TINGLE v. Mrs. Ernest KELLY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Since the evidence authorized at least the partial recovery by the plaintiff, the court did not err in denying the defendant's motion for a judgment notwithstanding the mistrial.
Mrs. Ernest Kelly brought a trover action against Miss M. A. Tingle to recover the value of certain items of furniture. The defendant's motion for a directed verdict was overruled. After deliberation, the jury could not reach a verdict and a mistrial was declared. The defendant then moved for a judgment notwithstanding the mistrial. The court overruled the motion and the defendant excepts.
Geo. Starr Peck, Atlanta, for plaintiff in error.
MacDougald, Feagin & Williams, Atlanta, for defendant in error.
A verdict was not demanded for the defendant; therefore, the court did not err in overruling the motion for a judgment notwithstanding the mistrial. While the plaintiff testified as to the total value of the aggregate of the items, the defendant testified as to the value of certain individual items of the furniture. The jury was authorized to find that the plaintiff was entitled to recover at least as to these items and were authorized to place on them the value as testified to by the defendant. Where the evidence authorizes a verdict for the plaintiff in some amount, a motion for a judgment notwithstanding the mistrial is without merit. See King v. Loeb, 93 Ga.App. 301(1), 91 S.E.2d 532.
Peebles v. Felton, 14 Ga.App. 5(1), 80 S.E. 21, 22, is not applicable in the instant case. There the defendant's testimony as to the value of the property sued for was that 'it was not worth $500.' The court properly held that this was not testimony as to the value of the property sued for. In this case the defendant did not so testify but testified as to the value of the items.
In her original petition the plaintiff alleged that she owned certain items being withheld from her by the defendant and which were located in Apartment No. 1 of a certain address. By amendment the plaintiff alleged another list as being her property and located in the same apartment. During the course of the trial the plaintiff and her counsel admitted that the items listed in the original petition as being in Apartment No. 1 were erroneously listed and were the property of the defendant. Such admission did not include...
To continue reading
Request your trial
-
Henderson v. Flood, 22992
...a verdict for the plaintiff in some amount, a motion for a judgment notwithstanding the mistrial is without merit.' Tingle v. Kelly, 94 Ga.App. 138, 93 S.E.2d 773, 774. See Ready-Mix Concrete Co. v. Rape, 98 Ga.App. 503(5), 106 S.E.2d 429. Thus, we can not say that there was no issue to pre......
-
Pettit v. Stiles Hotel Co.
...of the wife's case. Accordingly, the motion to dismiss the writ of error is without merit and must be denied. See Tingle v. Kelly, 94 Ga.App. 138, 93 S.E.2d 773. 2. The evidence on both trials was very similar with the same witnesses, in most instances, testifying to the same facts concerni......