Bowman v. Givens

9 S.E.2d 833 | Ga. | 1940

The verdict is supported by the evidence; and the special grounds are insufficient to require the grant of a new trial.

No. 13373. JUNE 14, 1940. This is an equitable action seeking to enjoin against enforcement of a dispossessory warrant. The prayer of petitioner, Pet Givens, is that upon payment to defendant, S. D. Bowman, of any balance found to be due to him, if any, title to the described real estate be decreed to be in petitioner, and that any right, title, or interest held by the defendant be decreed null and void, and that Bowman and Otho McNeill, the constable in possession of the warrant, be enjoined from further attempting to carry out or serve the warrant. The prayers for relief were predicated upon the following allegations in the petition: Petitioner had purchased the realty from J. W. Peddy in 1930, taking a conveyance from him, and executing in turn a security deed for the balance of the purchase-price; that after J. W. Peddy died, his executor, C. H. Peddy, demanded of petitioner the balance due, which was $100.00; not having the money, petitioner procured the defendant, Bowman, to advance her the amount; that Bowman paid the sum to the executor, and petitioner was led to believe at that time, and afterwards, that Bowman had taken a transfer of the security deed to himself, as he told her he was advancing her a loan and "told her that he was giving her an option to pay off the said debt to him." Petitioner alleged that she is an old negro woman, unable to read or write, and depended upon defendant Bowman to reconvey the property to her upon her payment to him of the $100.00. She further alleged that she has paid him more than $100.00, and "has upon one occasion carried to him the balance of money due him and he refused to take the same, said tender being all the money due upon the said debt to him;" that petitioner is informed that at the time she borrowed the $100 from defendant he took a warranty deed from C. H. Peddy, as executor of the estate of J. W. Peddy, but petitioner had never been informed of any foreclosure by said executor. The defendant answered to the effect that he purchased the property from C. H. Peddy, who had purchased it under the power of sale contained in petitioner's security deed to J. W. Peddy, after the same had been duly advertised. He denied the material allegations upon which petitioner's prayers were based. After the introduction of evidence the case was submitted to a jury, who found for the petitioner. A new trial was refused, and the defendant excepted. Error is assigned on the refusal to grant a new trial. Grounds 1 and 2 of the amendment to the motion attack portions of the charge, not because the instructions stated incorrect principles of law, but it is contended that there was no evidence to warrant the instructions. In each instance the charge contained a statement as to the law applicable to the case as made by petitioner in her suit, and the criticism is but another way of presenting the contention that she offered no sufficient evidence to justify the submission of her case to the jury. Grounds 5 and 6 are but reiterations of the grounds asserting that the verdict was contrary to the evidence. Whether or not these four grounds are meritorious is a question to be determined upon a consideration of the general grounds.

Ground 4 complains that the judge admitted, over objection of the movant that it was not properly executed and sworn to, a copy of a taxpayer's return of property for taxation. It was a copy of Pet Givens' tax return, duly certified by the tax-collector, as the same appeared of record in his office. This ground is without merit. Jett v. Hart, 152 Ga. 266 (109 S.E. 654).

Ground 3 was as follows: "Because upon the trial of said case the court erred in the following point and particular: On page three, line three, of the brief of the evidence, C. H. Peddy, sworn in behalf of the plaintiff, testified as follows, on cross-examination by movant's attorney: `She said that she got him to pay the money.' Said testimony was admitted in evidence over objection timely made by counsel for defendant. The court erred in admitting said testimony in evidence over timely and proper objection by counsel for defendant, for the reason that said evidence was hearsay, illegal, and was prejudicial to the defendant's rights, and assigns same as error." Without an examination of the brief of evidence, we can not know whether the answer was in direct response to a question of movant's counsel or not; nor whom "she" or "him" refers to; nor whether the one meant defendant in error, and the other plaintiff in error. It is not shown that at the time the objection was made movant stated to the court what the objection was. Henslee v. Harper,148 Ga. 621 (97 S.E. 667). This ground presents no sufficient reason for reversal. Upon a consideration of the general grounds of the motion and upon an examination of the evidence, we have reached the conclusion that the verdict was supported; and it having received the approval of the trial judge, his discretion in refusing a new trial will not be disturbed.

Judgment affirmed. All the Justices concur.