Central of Georgia Railway Co. v. Miller

26 Ga. App. 210 | Ga. Ct. App. | 1921

Luke, J.

Considering the petition for certiorari, and the answer of the trial judge thereto, for no reason assigned was it error for the judge of the .superior court to overrule the certiorari.

Judgment a'fjvi'med.

Broyles¡ G. J., and BloodwortK, J., concur.

On the trial of the case the foregoing facts appeared from the evidence introduced by the plaintiff; and at the conclusion of the plaintiff’s evidence the court, on oral motion of the defendants, “ dismissed the plaintiff’s claim ” and rendered judgment against the plaintiff for the amount of the defendants’ counterclaim of $30. The plaintiff sued out certiorari, the certiorari was overruled, and the plaintiff excepted. The grounds of the petition for certiorari are:

1. The court “ erred in dismissing the plaintiff’s claim and also in entering up judgment for the defendant as aforesaid. ”

2. The court erred in refusing to strike the defendants’ answer because it was not verified. The judge’s answer to the certiorari states that when the motion to strike the defendants’ answer was made, counsel for the plaintiff produced a copy of the suit served, and stated that the copy was not verified; after which the motion was not insisted upon, and the court, being of the opinion that the point was not further insisted upon, made no definite ruling on the motion.

3. The court erred in ruling out testimony of Eussell regarding the market value of the iron at the time of delivery to Miller & Lipschitz. Eussell was the plaintiff’s agent at Atlanta and. he testified that the plaintiff settled with the consignor “ on the basis of $18 a ton. ” He further testified: “ T do not know of my own knowledge what the value was. I inquired around among different iron dealers of this town as to the market value on this date, and I was informed that it was $18 a ton. ” The court, on motion of the defendants, ruled out the testimony as to the market value of the iron, on the ground that the market value could not be proved in this manner. (Other testimony for the plaintiff, which was uncontradicted, as to market value, was admitted, the consignor testifying that the sum paid him by the plaintiff in settlement for the iron was “ much less than the value of the iron; ” that the market price was more than that.)

4. The court erred in entering up judgment for the defendants when no evidence was introduced to show that the defendants were entitled to recover on their counterclaim. The judge’s answer to the certiorari states that before the judgment was rendered the plaintiff’s counsel stated in open court that if the plaintiff was not entitled to recover, the defendants should recover $30 and costs; that there was no controversy as to the correctness of this amount if the plaintiff’s contention was not correct.

Little, Powell, Smith & Goldstein, for plaintiff. Rosser, Slaton, Phillips & Hopkins, for defendants.