3 Ga. App. 238 | Ga. Ct. App. | 1907
The judge directed a verdict, and exception is taken thereto. As we held in Davis v. Kirkland, 1 Ga. App. 10 (58 S. E. 209), the power conferred by the Civil Code, §5331, is merely permissive and granted for the purpose of preventing a useless waste of time. The trial judge, therefore, directs a verdict at his peril. But there is no error if no other verdict could have been found than that directed. There was no error in directing a verdict in this case.
Crews sued Collins & Toole on open account. The defendants admitted a prima facie case and assumed the burden of proof. This gave the plaintiff a right to a verdict unless the defendants proved their defense in all respects. The plea of the defendants was twice amended (with the consent of the court and the plaintiff) during the course of the trial, — -first by striking and then by reinserting the third paragraph of the answer. The third paragraph. of the answer averred that the plaintiff had actual notice of the proceedings in bankruptcy. It was necessary for the defendants to prove this in this case regardless of the plea, if they hoped to defeat recovery. We think they failed to -prove it. The plaintiff,
Judgment affirmed. Powell, J., disqualified.