53 Ga. App. 71 | Ga. Ct. App. | 1936
Lead Opinion
Under tbe common law, “When the grand jury
Applying the rules stated above to the facts in this case, the court erred in adjudging that the evidence demanded a verdict
Judgment reversed.
Concurrence Opinion
I concur in the result, though not in all that is said. In my opinion, a sheriff, who has in his custody a prisoner who has been regularly and legally committed to his custody and has been directed to keep such prisoner until “discharged by due process of law,” is not liable for damages in an action for alleged false imprisonment, where it appears that the grand jury, upon an investigation of £he charge, has returned a “no bill,” but before the court, or the solicitor-general speaking for the court, has directed him to discharge such prisoner. The effect of a return of a “no bill” by a grand jury is a question for judicial determination, and the sheriff does not subject himself to a suit for false imprisonment by holding the prisoner until he is given direction by the court or the solicitor-general.
I do not think the writ of error should be dismissed for lack of proper assignments of error. I may first state that counsel have not raised such a question. The Code of 1933, § 110-104, provides that “Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto.” In the present case there is no conflict in the evidence, and no error is assigned on such ground. There was no issue to be submitted to the jury on the right to recover, but only as to the amount of recovery in the event plaintiff could recover. The evidence demanded a verdict on that point in favor of the defendant. The court directed it in favor of the plaintiff, and the defendant brought the case to this court, assigning this action as error. In Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280), it was said: “When it is clear that in point of law the action will not lie, a judgment in favor of the plaintiff will be reversed on writ of error.” It is further said: “An assignment of error upon the direction of a verdict sufficiently presents for decision the question whether or not, under the pleadings and the evidence [italics mine], the party in whose favor the verdict was directed is entitled to prevail.” Further: “An assignment of error in these words: 'the court committed error in di
Dissenting Opinion
dissenting. In my opinion this case is controlled by the numerous and repeated decisions of the Supreme Court and this court which hold that where a case has been tried before a jury and a verdict rendered therein, even where the verdict was directed by the court, if the losing party desires to test the sufficiency of the evidence to support the verdict, a motion for a new trial is indispensable, and ““the sufficiency of the evidence to sustain a verdict will not be considered by this court upon a direct bill of exceptions. The question must be made and passed upon in the court below, by a motion for a new trial." (Italics mine.) Bacon v. Jones, 117 Ga. 497 (2) (43 S. E. 689); Beall v. Mineral Tone Co., 167 Ga. 667 (146 S. E. 473); Sanders v. State, 84 Ga. 217 (10 S. E. 629), and cit.; Mobley v. Ellis, 37 Ga. App. 683 (141 S. E. 321), and cit.; Hamilton Bank v. Robertson, 177 Ga. 734 (171 S. E. 293). The instant case was tried before a jury, and a verdict in favor of the plaintiff was directed, and was so returned by the jury. The defendant, without moving, for a new trial, brought the case to this court by a direct bill of excep