148 Ga. 840 | Ga. | 1919
The suit was instituted against William Frost; and after suggestion of his death of record in 1910, William J. Frost as administrator upon his estate was made a party defendant. By amendment to the petition in 1911, William J. Frost -individually was made a party defendant, and duly served. The character of the case will appear from the decision made when it was before this court on a former occasion. Smith v. Frost, 144 Ga. 115 (86 S. E. 235). At a subsequent trial which occurred in 1917, William J. Frost in his individual capacity offered to file an answer setting up title to a part of the land in himself under a deed executed by William Frost in 1900 (which was three years before the institution of the suit), and possession thereunder for a period of more than seven years before William J. Frost individually was made a party defendant. The judge declined to allow the answer filed, on the ground' that it came too late. In the judgment it is stated that no entry of default appears on the docket, nor has there been any judgment of default entered against W. J. Frost, and “that at least one motion for continuance has been made by the defendant W. J. Frost.” Held:
1. Treating as true the allegations of the answer which was rejected, prescription would run in favor of William J. Frost individually as to the part of land claimed by him, until he was made a party defendant and served (Bower v. Thomas, 69 Ga. 47 (2); Powell on Actions for Land, § 124); and the plea was meritorious.
2. The provisions of the Civil Code, § 5628, requiring the judge at each' regular term to call the eases on the appearance docket, and hear and decide all objections made to the sufficiency of petitions, pleas, etc., and
(а) It would seem that if § 5628 and § 5653, supra, were applicable, under application of their provisions the proposed answer was not offered too late. McKenzie v. Consolidated Lumber Co., 142 Ca. 375 (82 S. E. 1062); Hodnett v. Stewart, 131 Ga. 67 (61 S. E. 1124); American Central Ins. Co. v. Albright, 145 Ca. 515 (89 S. E. 487).
(б) The judgment disallowing the plea was erroneous.
(c) On another hearing evidence tending to support the plea, duly offered, should be admitted.
3. One issue in the case was whether the defendant’s possession was wrongful. While instructing the jury on the subject of mesne profits, the language employed by the trial judge amounted to an expression of opinion that the defendant’s possession was wrongful.
4. There is no merit in the assignment of error upon the allowance of an amendment which alleges the death of one of the original plaintiffs, and prays that the petitioners as his heirs at law recover his interest in the land.
5. Some of the assignments of error were not discussed in the brief of counsel for the plaintiffs in error, and’, under the rules of this court, will be considered as abandoned.
6. None of the other special grounds of the motion for new trial, which complain of rulings on admissibility of evidence and of certain excerpts from the charge of the court, when considered in connection with the pleadings, the evidence, and the charge in its entirety, show cause for reversal; nor are they of such character as to require elaboration.
7. As the judgment of the trial court is reversed upon other grounds, no ruling is made as to the sufficiency of the evidence to support the verdict. Judgment reversed.