12 Ga. App. 696 | Ga. Ct. App. | 1913
The plaintiff in error insists that the judge of the superior court erred in sustaining the certiorari, and in thereby setting aside a second consecutive verdict in his favor. It is, of course, well settled that after two or more consecutive verdicts, the evidence is to be taken by the reviewing court, whether on certiorari or writ of error, most strongly in favor of the prevailing party. Windsor v. Cruse, 79 Ga. 635 (7 S. E. 141). In Harrigan v. Savannah &c. Railway Co., 84 Ga. 793, it was helcl that the court erred in setting aside the verdict in favor of the plaintiff, because no reversible error was committed on the trial, and the evidence supported the verdict; but that was the third verdict in the plaintiff’s favor. In the instant ease the judge of the superior court sustained 'the petition for certiorari and remanded the cause for a third trial; and while the judge did not assign any special reason for the judgment, it is plain that another trial was granted because of the admission in the justice’s court of certain testimony which he deemed to be prejudicial to the defendant’s right to a fair and legal trial. Two questions, therefore, are presented by the writ of error: (1) Was the evidence as to the receipt (to which timely objection was offered in the justice’s court) an error? and (2) if so, was it such an error as required or authorized the grant of a third trial of the case ?
We find no error in the judgment of the superior court sustaining the certiorari and ordering a new trial. The introduction of incompetent evidence is erroneous, and ordinarily the error must be presumed to have injured the losing party. Hence it can not be held that the judge of the superior court erred in setting aside even a second concurrent verdict and ordering a trial, in which an error which may have controlled and must have influenced the previous finding of the jury will not enter. Judgment affirmed. .