Williams v. Mcelroy, (No. 16882.)

• Decision Date: 14 May 1926
• Docket Number: (No. 16882.)
• Citation: 133 S.E. 297,35 Ga.App. 420
• Parties: WILLIAMS . v. McELROY.
• Court: Georgia Court of Appeals

35 Ga.App. 420

133 S.E. 297

WILLIAMS .

v.McELROY.

(No. 16882.)

Court of Appeals of Georgia, Division No. 2,

May 14, 1926.

(Syllabus by Editorial Staff.)

stances indicated that failure was due to ignorance, accident, or mistake.

Error from Superior Court, Madison County; W. L. Hodges, Judge.

Suit by M. E. Williams against J. T. McElroy. To review a judgment of dismissal, plaintiff brings error. Reversed.

Pierce Martin, John J. Strickland, and Rupert A. Brown, all of Athens, and R. Howard Gordon, of Danielsville, for plaintiff in error.

Erwin, Erwin & Nix, of Athens, and Berry T. Moseley, of Danielsville, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J. [1-3] 1. When it appears from the record that this court is without jurisdiction of the case, it is ordinarily the duty of this court so to declare, irrespective of whether or not any such point is made by the record. The only questions which this court is authorized to pass upon are those made by the bill of exceptions. Where, from the whole bill of exceptions, it is plainly apparent that exception is intended to be taken to the action of the court in granting a nonsuit and dismissing the case at the termination of the plaintiff's evidence, and complaint is directed to the alleged error of "permitting a judgment to be rendered dismissing said suit and petition, " the bill of exceptions will not be dismissed because of the patently inadvertent use of the term "directing a verdict" and dismissing the suit, instead of the term "granting a nonsuit" and dismissing the suit.

2. "To constitute a valid gift, there must be the intention to give by the donor, acceptance by the donee, and delivery of the article given, or some act accepted by the law in lieu thereof." Civil Code 1910, § 4144. In such a case delivery may, however, be either actual or constructive. Civil Code 1910, § 4147; Hall v. Simmons, 125 Ga. 801, 54 S. E. 751. Thus, where in a trover proceeding, the evidence was such as to justify a finding that the husband as donor had parted absolutely with his title in favor of the wife, and that the subject-matter of the gift (certain promissory notes) remained in a box to which the wife carried the key, but which contained articles belonging to each, and to which each continued to have the right of access, it became a question of fact for the jury to determine whether, under the circumstances, the donor had in fact relinquished control by 'the gift. Especially is this true because:

"The...