173 Ga. 59 | Ga. | 1931
(After stating the foregoing facts.)
The demurrer to the petition, on the ground that the superior court of Clay County did not have jurisdiction of Mallory & Nash, is without merit. Our law provides that “Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.” Civil Code (1910), § 6540. The City of Ft. Gaines is within the County of Clay, where the suit was brought, and substantial relief was prayed against the City of Ft. Gaines. Each of the defendants is interested in the result of the suit, and in order to prevent a multiplicity of suits it was brought in the county in which resided one of the defendants against whom substantial relief was prayed. And it can not be said that there is no equity in the petition because of the fact that the contract
Special ground 1 of the motion for new trial is as follows: “Because upon the trial of said case; movant contends, the court erred in the. following point and particular: after evidence had been submitted by the defendants, Mallory & Nash, on plea to the jurisdiction, which evidence is more fully set out in the brief of evidence approved by the court, the court did then and there direct and instruct the jury to find a verdict against said plea to the jurisdiction, which judgment your movants insist was error for the following reasons: (a) because said judgment was contrary to the evidence adduced on said issue, and contrary to law, and for the further reason that under the evidence a verdict was demanded sustaining said plea to the jurisdiction.” For the reasons given in the foregoing division of this opinion, the court did not err in instructing the jury to find a verdict against the plea to the jurisdiction.
Ground 2 is as follows: “Because upon the trial of said case the following material evidence, movant contends, was illegally admitted to the jury by the court over the objection of movants, to wit: Extract from meeting of mayor and council — City of Ft. Gaines, Georgia, December 29, 1925 : cOn motion, it was agreed that
Ground 3 is as follows: “Because the following material evidence movant contends was illegally admitted to the jury by the court over the objection of movants, to wit: J. E. Paulin, a witness for the plaintiff, was allowed to testify as follows: ‘ What was said by Mr. Mallory about his accepting the old bridge ? A. He agreed to accept the old bridge.’ Movants objected to the admission of such evidence at the time same was offered, and did then
Ground 4 is insufficient in form to raise any question for determination by this court.
Ground 5 is as follows: “Because, movant contends, the court erred in refusing to give in charge the following request to charge, the same having been submitted in writing before the jury retired to consider their verdict, to wit: I charge you that if you believe under the evidence that the City of Ft. Gaines sold to Clay County an interest in the Lattice bridge to the extent of $1500, and that you find that this was reduced by a payment by the City of Ft. Gaines to $1100, and that after this the City of Ft. Gaines sold the bridge to Mallory & Nash for $1100, and that Mallory & Nash agreed with the City of Ft. Gaines orally to pay the debt of the City of Ft. Gaines, but made no written agreement with Clay County to this effect, then Clay County would not be authorized to recover against Mallory & Nash.” The Civil Code (1910), § 3223, provides that the statute of frauds does not extend to cases “ where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance.” Under the evidence the above request to charge was not pertinent, and the court did not err in refusing it.
Ground 6 is as follows: '“Because movant contends the court erred in refusing to give in charge the following request to charge, the same having been submitted in writing before the jury retired to consider their verdict, to wit: Any promise by Mallory & Nash to pay any debt already owed by the City of Ft. Gaines to Clay County would have to be in writing and signed by Mallory & Nash, in order to make Mallory & Nash liable. Any such promise would have to be made to Clay County before Clay County would have the right to sue Mallory & Nash on such debt.” What has just been said as to ground 5 of the motion applies also to this ground, and the assignment of error is without merit.
Ground 7 is as follows: “Because the court erred in charging the jury as follows: CI charge you, however, if you find
Judgment affirmed.