11 Ga. App. 536 | Ga. Ct. App. | 1912
This was a claim case. The property involved was personal property. It is assigned as error that the court permitted the jury, over the objection of the plaintiff in fi. fa., to go out .into the court-yard and view the mule which had been levied on and which was claimed. At common law -an inspection is permitted where the subject-matter of the suit is real or mixed property, but the jury could not view personal property if such was the subject of litigation. Inasmuch as by our adopting statute of 1784 the common law became of force in this State, it would seem that a trial court is not authorized, as a matter of judicial discretion, to have personal property, when such personal property is
The Supreme Court, in the ease of Broyles v. Prisock, 97 Ga. 643 (25 S. E. 389), seemed to be doubtful if it was within the discretion of the trial judge, over the objection of either party, to allow an inspection of the premises in an action for damages, and would not reverse his action in refusing to do so; basing this ruling upon the ground that it affirmatively appeared that material physical changes had occurred in the character of the premises between the time of the injury and the time of the trial. We may assume from this that the ruling might have been different if it had appeared that the premises were in practically the same condition at the time the motion was made that they were in at the time of the injury. Upon this ruling in the Broyles case, Judge Cobb held, in the case of Johnson v. Winship Machine Co., 108 Ga. 555 (33 S. E. 1014): “It is doubtful whether an application to allow the jury to inspect the property which is involved in a suit is allowable at all, except by consent of all the parties to the ease.” However, in County of Bibb v. Reese, 115 Ga. 346 (41 S. E. 636), a ruling was made upon authority, and Chief Justice Sijnmons, delivering the opinion of the court, said: “It seems that at common law this right of the judge to permit the jury to view the premises existed only in real and mixed actions, and did not extend to personal actions and criminal cases without the consent of both