Carter v. Pitts, 125 Ga. 792

Carter v. Pitts

125 Ga. 792 | Ga. | 1906

Lead Opinion

Atkinson, J.

1. To a suit in a justice’s court upon an open account the defendant filed a plea denying indebtedness, and claiming a reduction by one fourth of the amount of the account, because of the failure of the plaintiff to have his weights and measures tested in accordance *793with law. The plaintiff proved his account, but it was also proved that his weights and measures had not been tested. The verdict was for the plaintiff, without reduction. Thus was the case presented to the judge of the superior court upon certiorari. Upon consideration, the judge sustained the certiorari to the extent of reducing the verdict by one fourth of the amount of the account, but allowed the verdict in other respects to stand. Held, that this judgment was not erroneous.

Submitted March 3, Decided May 14, 1906. Rehearing denied July 3, 1906.

Certiorari. Before Judge Lumpkin. Fulton superior court. March 28, 1905.

Robert L. Rodgers, for plaintiff in error.

2. In this case the plaintiff in error, having failed in his brief to discuss or otherwise refer to his proposition that the verdict should be set' aside because the jury was not sworn, his contention in that respect will be treated1 as abandoned, and will not be considered. See, in this connection, Mayson v. State, 124 Ga. 789, and cit.

Judgment affirmed.

All the Justices concur, except Lumpkin, J., disqualified.

Rehearing

ON MOTION FOB REHEARING.

Atkinson, J.

1. A summons in a suit on an open account in a justice’s court may be amended by attaching thereto a bill of particulars. The law does not prescribe any particular mode of service of such amendment; and when it appears that counsel for the defendant has been handed a copy of the amendment before the trial, the judgment of the court afterwards rendered will not be disturbed on the ground that the service was not more formal.

2. The refusal of an application for continuance on the ground of the illness of a party, when it appears that such party was in court at the time of the application and her condition was passed upon by the court as by inspection, will not be disturbed, unless it appears that there has been a manifest abuse of discretion. Rawlins v. State, 124 Ga. 33(18) ; Rowland v. State, 125 Ga. 792. No such abuse of discretion appears in this case.

Motion for rehearing denied.

All the Justices concur, except Fish, O. J., absent, and Lumpkin, J., disqualified.