Tompkins v. Am. Land Co
| Citation | 77 S.E. 623,139 Ga. 377 |
| Parties | TOMPKINS. v. AMERICAN LAND CO. |
| Decision Date | 11 February 1913 |
| Court | Supreme Court of Georgia |
(Syllabus by the Court.)
1. Continuance (§ 46*)—Application—Sufficiency.
Irrespective of the counter showing made by the plaintiff, the motion of the defendant for a continuance, upon the ground of an absent witness, was insufficient, in that it was not shown that he expected to be able to procure the testimony of the witness at the next. term of the court, and that the application was not made for the purpose of delay, but to enable the defendant to procure the testimony of the witness. Civil Code 1910, S 5715; Cobb v. State, 110 Ga. 314, 35 S. E. 178.
[Ed. Note.—For other cases, see Continuance, Cent. Dig. §§ 132-140; Dec. Dig. § 46.*]
2. New Trial (§ 18*)—Grounds—Rulings on Pleadings.
Neither the decision of the court in overruling a demurrer to a petition, nor in striking the answer or a portion thereof, can properly lie made the ground of a motion for new trial, llearden v. Holland, 134 Ga. 70 (2), 67 S. E. 432; Lindsav v. State, 138 Ga. 818(11), 76 S. E. 369; Toomey v. Read, 133 Ga. 855, 67 S. E. 100; Turner v. Barber, 131 Ga. 444 (6), 62 S. E. 587, and cases cited; Lee v. McCarty, 132 Ga. 698 (3), 64 S. E. 997, and cases cited; Brandon v. Akers, 134 Ga. 78 (2), 67 S. E. 540; Young v. Germania Savings Bank, 134 Ga. 602 (3), 68 S. E. 321; Eldorado Jewelry Co. v. Hitchcock, 136 Ga. 22, 70 S. E. 658; Methodist Episcopal Churcn v. Dudley, etc., Co., 137 Ga. 68 (3), 72 S. E. 480.
[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 24-29; Dec. Dig. § 18.*]
3. Exceptions, Bill of (§ 39*) — Time for Filing.
Where no exceptions pendente lite were filed, complaining of the overruling of demurrers to a petition and the striking of an answer, or a portion thereof, but direct assignments of error upon such rulings were made in a bill of exceptions, wherein error was also assigned upon the overruling of a motion for new trial, and such bill of exceptions was not presented within 30 days from the adjournment of the term of the court during which the rulings on the demurrers and the answer were made, although presented within 30 days from the overruling of the motion for new trial, such assignments of error as to the rulings on the pleadings came too late to be considered by this court. Civil Code 1910, § 6152; Crawford v. Goodwin, 128 Ga. 134, 57 S. E. 240.
[Ed. Note.—For other cases, see Exceptions. Bill of, Cent. Dig. §§ 51, 52, 54-56, 60; Dec. Dig. § 39.*]
4. Pleading (§ 428*)—Assignments of Error—Issues and Proof.
Where no valid assignment of error was made upon the overruling of a general demurrer to the petition, the admission of evidence tending to prove the allegations of the petition, and otherwise competent, was not error, where the ground of objection to the evidence was in effect the same as that of the overruled demurrer. See Brooks v. Rawlings, 138 Ga. 310, 75 S. E. 157, and cases cited.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1433-1430; Dec. Dig. § 428.*]
5. Evidence (§ 271*)—Declarations—Self-Serving Statements.
One of the defenses to an action for the alleged breach of a written contract for the purchase of several city lots being to the effect that the defendant did not purchase from the plaintiff all of the lots specified in the contract, the court did not err on the trial of the action in refusing to permit the defendant, on cross-examination of one of the plaintiff's witnesses, to prove that the defendant, soon after he "found out what lots plaintiff had him charged with, contended and told plaintiff that he did not buy the lots charged to him in the contract as filled out, and that this was no new contention of Mr. Tompkins [the defendant], and that Mr. Tompkins told him he would pay plaintiff for what lots he bought." This was an effort merely to prove a self-serving declaration of the defendant.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.*]
6. Appeal and Error (§ 664*)—Review-Harmless Ebror—Exclusion of Evidence.
De Nieff v. Howell, 138 Ga. 248, 75 S. E. 202.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2856-2859; Dec. Dig. § 664.*]
7. Nature and Form of Action—Recovery of Price—Specific Performance.
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... ... motion for a new trial. Nicholls v. Popwell, 80 Ga ... 604, 6 S.E. 21; Willbanks v. Untriner, 98 Ga. 801, ... 25 S.E. 841; Tompkins v. American Land Co., 139 Ga ... 377(2), 77 S.E. 623. Consequently, an order granted during ... the term at which a motion for a new trial is ... ...
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...the judge's discretion to deny a continuance. Carr v. Dickson, 58 Ga. 144; Cobb v. State, 110 Ga. 314, 35 S.E. 178; Tompkins v. American Land Co., 139 Ga. 377(1), 77 S.E. 623.' (Emphasis In the case sub judice, the defendant did not show a full compliance with the statute, and the trial cou......
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...to directly either by a pendente lite bill of exceptions or in a main bill of exceptions, if that be filed in time. Tompkins v. American Land Co., 139 Ga. 377, 77 S. E. 623; Tice Co. v. Evans, 32 Ga. App. 385, 123 S. E. 742. Judgment affirmed. All the Justices ...
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...Civil Code 1910, §§ 5717, 5718. 2. The dismissal of a plea cannot be a ground for a motion for a new trial. Tompkins v. American Land Co., 139 Ga. 377 (2), 77 S. E. 623. 3. The only assignment of error in the bill of exceptions being to the overruling of the defendant's motion for a new tri......