85 Ga. App. 231 | Ga. Ct. App. | 1952
The plaintiffs and each of them held remainder interests in the life estate being enjoyed by the defendant until her death and on which it is claimed she committed waste and failed to protect by illegally cutting the timber from certain portions thereof. The plaintiffs alleged that the defendant cut timber valued at $2775 from lots 280, 281, and 297. There was no proof to this effect. Where a plaintiff fails to prove the case as laid in the petition, the grant of a nonsuit is not error. Harris v. Paulk, 10 Ga. App. 334 (73 S. E. 430); Byas v. Hammond, 32 Ga. App. 18 (122 S. E. 708). The plaintiff must recover, if at all, upon the case laid in the petition. Napier v. Strong, 19 Ga. App. 401 (91 S. E. 579). See also Code § 110-310 as to nonsuits. An immaterial variance between the allegations and proof does not authorize a nonsuit. See Code § 81-116. However, the variance here was not of that nature.
Furthermore, there was no evidence as to the actual value of
A witness for the plaintiffs testified that he cut timber from what he called the Johnson place and from lots 282 and 279. The witness, Dawson, testified that he thought he cut some timber on the Johnson place. There was no evidence that the timber cut and sold by the life tenant was on the lands referred to, lots 280, 281 and 297. In these circumstances, the plaintiffs did not prove the case as laid in the petition, and the nonsuit was not erroneously granted.
This is not the first appearance of this litigation before the appellate courts. In 1944, the plaintiffs brought suit against the deceased Mrs. Wright, and to the judgment overruling her general demurrer she excepted, and took the case to the Supreme Court, where the judgment was reversed. Wright v. Conner, 200 Ga. 413 (37 S. E. 2d, 353). Before the remittitur reached and was made the judgment of the trial court, the plaintiffs filed an amendment to their petition. The defendant renewed her general demurrer to the petition as amended, and the trial court sustained the same and dismissed the case. The case again went to the Supreme Court, where it was affirmed. Conner v. Wright, 201 Ga. 753 (41 S. E. 2d, 158). Thereafter, the plaintiffs filed another suit against Mrs. Wright, the same being a suit for damages for the cutting of this timber. A plea in bar was filed and this was demurred to. The defendant, Mrs. Wright, died and her executrix was made party defendant. The
Judgment affirmed.