Levy v. Simmons, 42 Ga. 53

Levy v. Simmons

42 Ga. 53 | Ga. | 1871

Warner, J.

This was an action brought to recover the possession of a horse, and upon the trial thereof, after the plaintiff had closed his. evidence, the defendant made a motion for a non-suit, which the Court overruled, and the defendant excepted. The defendant then demurred to the plaintiff’s evidence, and there was a joinder in the demurrer by the plaintiff, and the Court,upon the hearing thereof, gave judgment for the plaintiff, to which the defendant excepted. The Court then referred the case to the jury to ascertain the plaintiff’s damages, and thereupon the defendant offered to prove, before the Court and jury, that the horse in controversy was the property of the defenant, which the Court refused to allow him to do, on the ground, that he was .concluded by the judgment on the demurrer, and said that no proof would be allowed before the jury, except as to the amount of damages the plaintiff had sustained. Whereupon, the defendant excepted. The motion for a non-suit was properly overruled by the Court, as there was sufficient evidence of the plaintiff’s legal right to recover the horse to be submitted to the jury, but if there had been no evidence which, in law, would have entitled the plaintiff to recover, then the non-suit should have been allowed by the Court.

A demurrer to evidence is not special pleading. Under the provisions of the common law, and the practice of the Courts in England, when the defendant demurred to the *56whole evidence, and the Court ovei’ruled the demurrer, the judgment of the Court on the legal right of the plaintiff to recover the property sued for, was conclusive on that point, and the defendant could not contest the legal right of the plaintiff to recover before the jury. But in this State, a different rule has prevailed ever since the enactment of the Judiciary Act of 1799. The practice in the Courts of this State has uniformly been, whenever the plaintiff’s evidence was considered by the defendant to be insufficient, in law, to entitle him to recover, to demur thereto, and to move the Court for a non-suit; and if, in the opinion of the Court, there was any evidence which ought, properly, to be submitted to the jury for their consideration, to overrule the demurrer, and refuse the motion for non-suit. But the overruling the demurrer to the evidence and refusing the motion for a non-suit has never been held to conclude the defendant from going before the jury and insisting upon his rights there, as he might be enabled to establish the same by evidence which he might introduce for that purpose. In other words, overruling the motion for a non-suit upon a demurrer to the plaintiff’s evidence, has never been held by the Courts of this State as conclusive upon the right claimed, so as to prevent the defendant from contesting it by evidence before the jury. The contemporaneous construction given to the Judiciary Act of 1799, by the Courts of this State, has uniformly been, that when the plaintiff made out a prima facie case by his evidence, he was entitled to go before the jury, and to have them decide upon that evidence, and that, although defendant may have demurred to that evidence as being insufficient, in law, to entitle the plaintiff to recover, and moved the Court to non-suit the plaintiff in consequence thereof, the overruling the defendant’s motion would not have the effect to conclude the defendant from going before the jury and contesting the legal right of the plaintiff to recover by the introduction of evidence, in his behalf, for that purpose. This practice has been so long recognized, and so *57thoroughly established by the decisions of the Courts of this State, that we are unwilling to disturb it, and we, therefore, reverse the judgment of the Court below in this case.

Judgment reversed.