10 Ga. App. 593 | Ga. Ct. App. | 1912
(After stating the foregoing facts.) By the demurrer to the petition, which was overruled, the defendant asserted: (1) That the petition sets out no cause of action. (2) That the petition is multifarious, joining in one suit more than one cause of action, and joining separate and distinct causes of action arising out of the separate and distinct transactions occurring at different times and at different places. (3) That there is a misjoinder of causes of action, in this, that the alleged cause of action set out in paragraphs 1, 2, and 3 is ex contractu, and the alleged cause of action set out in paragraphs 4 to 6 are ex delicto,
1. It is not necessary to rule upon the merits of any of these grounds of the demurrer; for no exception was taken to the judgment overruling it; and thereby the ruling upon the demurrer, whether right or wrong, became the law of the case. Lovelace v. Missouri State Life Ins. Co., 1 Ga. App. 446 (58 S. E. 93). The disposition of the demurrer only rendered it obligatory upon the plaintiff to prove the statements of his petition, in order to make out a prima facie case. Applying the doctrine of res judicata, as laid down in the Lovelace case, supra, as well as in Georgia Northern Ry. Co. v. Hutchins, 119 Ga. 510 (46 S. E. 659), Ray v. Anderson, 117 Ga. 136 (43 S. E. 408), Savannah, Florida & Western Ry. Co. v. Renfroe, 115 Ga. 774 (42 S. E. 88), and Roberts v. Ivey, 63 Ga. 623, to the ten grounds of the demurrer in the case at bar, it will be seen that several of the grounds of the motion for a new trial were practically eliminated, and present nothing for our consideration. This process of elimination applies to numbers 2, 18, and 19, alleging that the verdict is contrary to' law and the principles of equity and justice; number 5, as to what constitutes a valid consideration; number 6, as to the definiteness of the terms of the contract; number 7, as to- payments being made out of proceeds of the property conveyed by defendant to plain
2. Several of the grounds of the motion for new trial complain of the admission of testimony, and state the reasons why the testimony objected to should not have been admitted. None of these assignments of error present anything for the consideration of this court, nor did they present anything for the consideration of the trial court at the hearing of the motion for new trial; for the reason that it does not appear that any objection now presented was made before the court at the time of the ruling complained of. The statement in an assignment of error that certain testimony is objectionable, and is now objected to for, reasons therein stated, can not be considered, unless it affirmatively appears that the trial court ruled upon precisely the same objection, and that his judgment upon that objection was error. Nothing is better settled than that the distinct ground of objection to testimony must be clearly presented, and that, in default of an explicit statement of the ground of objection at the time the objection is interposed, the incorrectness of the court’s ruling is immaterial, because no ruling has been properly invoked .or required. Soell v. State, 4 Ga. App. 340 (61 S. E. 514). Where the point upon which a ruling is invoked in this court does not affirmatively appear to have been properly before the trial judge for his consideration, it is not error for the judge, when passing upon a motion for a new trial, to disregard this ground of the motion entirely, because defective. “A ground of a motion for a new trial, assigning error upon the admission of certain quoted testimony over the objection of the movant, without stating what the objection was upon which the trial judge ruled, is so incomplete that this court can not pass upon it.” McCray v. State, 134 Ga. 416 (68 S. E. 62, 20 Ann. Cas. 101) This ruling disposes of the objections here urged to the admission of the possessory-warrant proceedings sued out by Murphey against Creamer, and to the possessory warrant sworn out by Creamer against Murphey, and the statement of Billings which Creamer was permitted to testify to.
3. In the third ground of the motion for a new trial the complaint is made that the court erred in refusing to charge the jury (on the issue as to whether Murphey or Creamer had the right of possession as the tenant of Parks as landlord) that “the rights of
4. The statement by the court that a promise or agreement to pay a certain price would be a consideration was not erroneous or calculated to mislead the jury, when considered in the light of the fact that it immediately followed an instruction upon the subject of consideration, which had been requested, in which the jury were told: “The consideration of a contract must be definite as to the amount or amounts, and the time or times of payment, so that the seller can enforce his rights and collect the same by suit, if not paid when due. A consideration which does not become due at some time definite or that can be. made definite is not a valid consideration, and will not support a contract of sale.” It is true that the sentence to which exception is taken does not refer to the definiteness of time which is essential in order to-
5. One of the main grounds of objection urged in several assignments of error is that the contract which Creamer attempted to prove is a nudum pactum, because there is a total absence of mutuality. It is especially insisted that the contract is void because the only provision for the payment of the purchase-price is that it is to be paid from the proceeds of the business, and that this would be the payment to Murphey of his own property, and consequently no payment. We are cited to the eases of Beall v. Clark, 71 Ga. 818, and Dorsey v. Parkwood, 12 Howard (U. S.), 126, as authority for this proposition. We think the trial judge in this case went to the extreme limit in favor of the plaintiff in error when he charged that “a contract for the payment of the purchase-price of property from the proceeds of the property itself would be inoperative and void.” He certainly did not commit an error when he later instructed the jury that a contract of purchase might be good which contemplated the payment of the purchase-price from the profits of the property purchased. The cases of Beall v. Clark and Dorsey v. Parkwood, supra, in our opinion, are not in point in this case. In the Beall ease a minor son, to whose services a father was entitled, was told by his father that he would give him a certain plantation as soon as he made the money to pay the cost of it. The attempt to assert title in behalf of the son was based upon the code section which relates to the parol gift of real estate to a child, and the whole decision in the Beall case rests upon the proposition that the circumstances were not sufficient to raise the inference required by law in such cases. Our Supreme Court draws a distinction between the BeaTl case and the Dorsey case which clearly shows that our court was considering only the question of a parol gift of land by a father to his child. In the Beall case (p. 852) Justice Hall says, in regard to the Dorsey case: “In that case, the bargainer had no right to- the services of the bargainee; in this he had, yet the Supreme Court of the' United States held, without dissent upon .the part of any of its members, that ‘an agreement whereby the purchaser of a plantation bound himself ’■ by writing, as appears from the record, ‘to transfer to his son-in-law one half of the plantation, slaves, cattle and stock, as soon as the son-in-law should pay for one half
6. Under the evidence in this ease one of the issues was whether Murphey’s motive in having Creamer arrested under the warrant for trespass was to have him punished for a violation of the law, or whether it was his object, by means of the criminal prosecution, to compel Creamer to surrender to him the property in dispute. This issue was to be determined by the jury, and the excerpt from the judge’s charge upon the subject of malicious abuse and malicious use of legal process was not prejudicial to the plaintiff in error. Even if the judge did not distinctly classify the pending action, he properly distinguished the malicious abuse of legal process from malicious use of legal process, in the identical language employed by Chief Justice Simmons in Porter v. Johnson, 96 Ga. 146-7 (23 S. E. 123). Otherwise than as pointed out in the opinion in -that case, an action for malicious use of legal process seems to differ from one for malicious abuse of like process mainly in the fact that where a malicious use of legal process is alleged, it must also be alleged that the suit upon which the action is based has terminated, while in the case of malicious abuse of legal process an averment to that effect is unnecessary. Mullins v. Matthews, 122 Ga. 286 (50 S. E. 101); King v. Yarbray, 136 Ga. 212 (71 S. E. 131). Even if there was a misjoinder, the overruling of the demurrer presenting that objection not being excepted to, the judgment upon that point became the law of the case; and for this reason, though the allega
7. Without entering upon a discussion of the remaining grounds of the motion for a new trial (each of which we have carefulty weighed), it suffices to say that none of the errors assigned would authorize the grant of a new trial. It is plain that the modification or qualification of the judge’s instruction (as to the necessity that the alleged contract of sale should fix a definite time for payment), to the effect that where no definite time is fixed payment shall be made in a reasonable time, was not error. An abundance of authori- , ties sustain the proposition that it is not essential that a definite day of payment shall be fixed by the contract; and where payment is to be made within a specific period of time, it is only necessary that payment shall be actually made before the expiration of that period; and such a stipulation does not invalidate the contract of purchase. The jury appears to have taken a view of the evidence which fully authorized their finding, though an inference directly to the contrary was authorized. The charge of the court fully presented the contentions of the parties, and, upon the controlling principles of law involved, was as fair to the plaintiff in error as he had any right to expect. The major portion of the instructions requested were fully covered by the general charge; and where the instruction embodied in the request was wholly refused, it is apparent that the refusal was properly based upon the fact that the request, while embodying a correct principle of law, was not applicable to the evidence adduced upon the trial. The assignment of error which complains of the judge’s refusal to instruct the -jury, as requested, that the rights of McICendree & Company, and their assigns, under Parks’s written lease, would prevail oyer Parks’s rental to Creamer, affords an example typifying'more than one of these assignments of error. The request in that instance would not have been authorized by the evidence. It was undisputed that the lease had not been assigned to Murphey at the time that the present cause of action arose. It inay also be said, as to the qualification placed by the presiding judge upon the instructions requested, that they appear to be authorized in every instance.
Judgment affirmed. Pottle, J., not presiding.