Epps v. Thomas, 131 Ga. 64

131 Ga. 64 | Ga. | 1908

Atkinson, J.

In a suit for injunction material allegations upon which, the plaintiffs had based their claim for equitable relief were denied. On the trial it was admitted that the only question at issue was which of the parties should pay the costs of court. When that announcement was made, the judge did not suspend the trial of the main ease and in the exercise of a sound discretion proceed to tax the costs, as he is permitted to do in equity cases (see Civil Code, §4850; Pearce v. Chastain, 3 Ga. 226 (46 Am. D. 423) ; Davidson v. Story, 106 Ga. 799 (32 S. E. 867) ; Guernsey v. Phinizy, 113 Ga. 898 (39 S. E. 402, 84 Am. St. R. 270); Goodwin v. Mayor, 53 Ga. 410; Hearn v. Laird, 103 Ga. 271 (29 S. E. 973); Hamilton v. DuPre, 103 Ga. 795 (30 S. E. 248) ; Torras v. Raeburn, 108 Ga. 345 (33 S. E. 989) ; Strickland v. Hutchinson, 123 Ga. 396 (51 S. E. 348) ; Sparks v. Ga. Ry. Co., 113 Ga. 1111 (39 S. E. 470)), but proceeded with the trial of the main ease, and, upon evidence admitted and the pleadings before the' court, directed the jury to find a general verdict against the defendant. Upon that verdict the judge not only taxed the costs but decreed equitable relief in accordance with the prayers of the petition. When taken in connection with the pleadings, the evidence introduced upon the trial was not of such character as to authorize the direction of a verdict; and upon exception properly made a reversal of the ruling must result.

Judgment reversed.

All the Justices concur.

On the trial the only evidence submitted was testimony for the plaintiffs, of tbe county school commissioner, to the effect that he had made a contract with Daniels to teach the school at Florence, but that, the county board 'of education had no control of the school building; and the dispossessory warrant of the plaintiff Thomas charging the defendant Epps with the unlawful possession of the building, with the entry of the sheriff thereon that the defendant Eppis had failed to file a counter-affidavit, but had surrendered the keyb of the building to the sheriff. The judge directed a verdict for the plaintiffs, and passed an order granting a permanent injunction as prayed. A motion for new trial was made upon the general grounds, and upon the ground that the judge erred in admitting in evidence the dispossessory warrant over the objection that tlie same was irrelevant, -hearsay, and incompetent as against the defendants hot named therein. The motion was overruled, and exception was taken. In his certificate approving the brief of evidence the judge stated that “the only question in issue, as stated in the beginning of the trial, was the question as to which party would pay the cost.”

B. F. Harrell and G. 7. Harrell, for plaintiffs in error.