Morris v. Duncan, 2 Ga. App. 61

Morris v. Duncan

2 Ga. App. 61 | Ga. Ct. App. | 1907

Powell, J.

The principal points made by the plaintiff in error- and decided adversely are these: By reason of a default, the law-implied, as against the defendant (now plaintiff in error), a conclusive admission of all the facts alleged in the petition, and he was allowed to contest before the jury only the amount of the damages. The plaintiff testified that the value' of the goods taken by the defendant was so much, and described the damage done to the goods. The defendant having died and his personal representative being a party, the point was made that the plaintiff was not a competent witness to prove these facts. The suit being for the malicious abuse of legal process, the judge charged the jury that compensatory damages for the plaintiff’s wounded feelings (but not punitive damages, the defendant being dead) might be allowed. The point is made that the plaintiff did not testify that her feelings had been wounded; also that under the circumstances damages for wounded feelings were not recoverable. The suit was originally against several defendants, all of whom, the petition alleged, resided in Fulton county. Subsequently all the defendants, except the administrators of Morris, were stricken from the suit. Several terms after this had occurred (the case in the meantime having gone to the Supreme Court and having been remanded to the *62court below for new trial) the defendants, on the last trial of the ' .case, attempted to prove that neither Morris nor his administrators had ever lived in Fulton county, but had ever been residents of DeKalb county. The trial court refused to permit this to be proved. There was no plea to the jurisdiction. The court charged the jury that they might in their discretion add interest to the .amount of actual damage they should find in plaintiff’s favor; the point is made that interest during the pendency of the suit should have been excluded, as the delay in getting the ease to final trial .had been occasioned by the plaintiff’s laches.

The defendants through their able and untiring counsel have . made a gallant fight, especially so in light of .the handicap of the •default encountered at the beginning of the case (see the reports ■of the same case, sub nom. Mullins v. Matthews, 122 Ga. 286, 50 S. E. 101, and Morris v. Duncan, 126 Ga. 467, 54 S. E. 1045); but the end has come at last; for after a close and careful examination of the record, we find no error, and therefore affirm the judgment recovered by the plaintiff. Judgment affirmed.