83 Ga. 565 | Ga. | 1889
It appears from the record in this case that Theodore S. Taber, on the 2d of June, 1887, by his next friend, Mary C. Taber, commenced his action of trover against Phillips, for certain personal property mentioned in his declaration; that on the same day, he sued out bail process against said Phillips; that on the 3d of June, Phillips gave bond and security for the forthcoming of said property, and for the eventual condemnation money which might be assessed against him on the trial of the case. On the 27th of June the sheriff applied to the court for leave to sell the wagon and harness and one shawl, as perishable property, and stated in his application that the same had not been replevied by Phillips. The order was granted, and he sold the same for $10, which was applied in payment of the costs of the case. On July 27th, Phillips filed a plea of the general issue, which plea was signed by W. R. Hodgson, the defendant’s attorney. On February 13th, 1888, the declaration in trover was amended by striking therefrom the name of Mary C. Taber, who sued as next friend, the amendment alleging that the plaintiff had become of age since the filing of the declaration. The declaration was further amended at the same time by inserting therein the names of Taber’s wife, Eva C. Taber, and his child, Frank S. Taber, “said -wife and child being the beneficiaries of the homestead estate of which the property sued for in said action was a part, and the plaintiff sues for the use of said wife and child.” On February 18th, 1888, service of this amendment was acknowledged and copy waived by Hodgson, the defendant’s attorney. On October 16th, 1888, the declaration was further amended by alleging that the hire of the horse claimed was of the value of $15 per month, that Phillips was indebted to the plaintiff in that sum since the date of the conversion of said horse,
1. The first ground taken by the defendant in his motion was, in substance, that the judgment was illegal, because it was for $246, the hire or rent of said property, when the bail affidavit did not set forth any claim for said rexxt or hix’e. While the code, §3418, inquires a party suing out a bail process to state in his affidavit the value of the property sued for, and the amount of hire claimed, if any, we do not think if he fails to claim hire in the affidavit, that his failure would prevent him from recovering hire from the time of the commencement of the suit to the rendition of the ver
2. The second ground was, in substance, that the judgment was for a sum greater than the penal sum of the bond, the sum mentioned in the bond being $182 and the judgment being for $372. We do not think the plaintiff is restricted in his recovery to the amount mentioned in the bond, so. far as the defendant, the principal in the bond, is concerned. It would be a great injustice to plaintiffs in trover cases to restrict them in their recovery for the rent or hire of property sued for, to the amount claimed in the bail affidavit, or to the penal sum of the bond given to replevy the property. The case might be pending for years, the defendant receiving the benefit of the hire of the property during that time, which might amount to much more than the penal sum mentioned in the bond, and yet, under the construction contended for by the plain
8. The third ground alleges, in substance, that the judgment included the amount of $41, for a wagon, harness and shawl, although it was shown upon the trial that said articles had been sold by the sheriff as perishable property, under the order of the court before said verdict and judgment were rendered, and the proceeds of said sale applied in payment of the costs and expenses. The trial judge did not err in overruling this ground of the motion for a new trial. "While it is true that the articles were sold by the sheriff' and the. proceeds applied as alleged in the motion, the record shows that .the bond given by the plaintiff in error expressly mentions these articles, and he agreed in said bond to produce them and have them forthcoming to answer the judgment of the court, and to pay whatever sum the jury might find their value to be. If he did not claim said articles, but surrendered them to the sheriff, as he alleges, he should not have mentioned them in his bond to produce them. After giving his bond for their forthcoming, he had no right to surrender them to the sheriff, and if he did so, it was a new conversion of said property, and he was liable for the value thereof. For this reason the act approved October 8th, 1887 (Acts 1887, p. 59), would not apply, even though his bond had been given after the passage of that act. That act only applies in cases where neither the plaintiff nor the defendant shall replevy the property, and provides that when it is sold by the sheriff', only the amount of the pro
4. The fourth ground alleges that the verdict and judgment in the case were obtained without notice to the defendants that the case was to be tried on the day it was tried; that they were not present, either personally or by counsel; that'the defendant had been crippled the day before the case was set for trial, and was unable from that day until long after the trial to leave his room; that on account of his suffering, he could not keep his mind on any business, and forgot about the calling of the docket, and did not know the case had been called and set for trial, until after the trial was had; that he had a good and valid defence to said suit. In his affidavit attached to this ground of the motion, he sets out what his defence was. It was, in substance, that he had in good faith bought and paid for the horse sued for, at a judicial sale, which sale was regular and according to law, and at which sale Taber, the plaintiff, was present and made no objection thereto; that the sum realized at said sale exceeded the amount of the execution under which said sale was had, and the expenses of the sale, by the sum of $19.70, which sum Taber received from the sheriff, and thereby ratified the sale. He further says that he never claimed any of the other articles sued for, nor did he convert any of them to his own use; that the wagon, harness and shawl were loaned by Taber, the plaintiff, to one Johnson, and left by him; that when the sheriff called on defendant and demanded the property, the defendant turned over to him the wagon, harness and shawl which the sheriff" sold, as hereinbefore recited.
In order for a defendant to set aside a verdict and judgment on the ground of his absence for providential cause, he must not only show that he was sick and un
It appears from the record that the property purchased by the defendant in the court below had been exempted from levy and sale and set apart to the defendant as the head of a family. Property thus set apart in Georgia is exempt from sale by any officer, unless within the exceptions provided for in the law. The plaintiff in error does not allege or show in his affidavit that the sale of this exempted property took place before the exemption was granted, or was within one of these exceptions. So far as appears from the record in the case, the judgment was against Taber individually, and for his individual debts. If that be true, and the property had been set apart to him as an exemption, the sale was illegal, and although Phillips may have bought it in good faith at a judicial sale and paid his money therefor, he got no title to the property. The plaintiff, Taber, as the head of a family, had the right to sue for and recover the same for the use and benefit of the
5. The 5th ground of the motion alleges in substance that the counsel of the plaintiff in error in this proceeding is insolvent, and it was argued that if the verdict is not set aside, he will have no redress, as he cannot recover damages from such counsel for his negligence. We do not think he is entitled to any relief on this ground. Phillips doubtless knew the pecuniary condition of his counsel when he employed him. Whether he did or not, it would be a new doctrine to
6. The defendants amended their motion and claimed that the verdict was not sustained by the evidence. We do not think we can consider this ground. This was not a motion for a new trial. While there is what purports to be a brief of evidence in the record, it is not signed by all the counsel nor approved, and ordered filed by the court. We therefore decline to look into-this evidence to ascertain whether the verdict is sustained by it or not.
7. The securities on the bond also filed a motion to set aside the verdict and judgment. The grounds are in substance the same as those of the plaintiff in error’s motion, which we have discussed, except the 4th ground thereof. That complains that “by reason of the amendment to the declaration in said case, filed February 18th, 1888, new parties were made without the knowledge or consent of his securities, and thereby a new case was made, and one in which his securities never agreed to be bound.” It is sufficient to say, in answer to this ground, that the amendment complained of was served on Phillips, the defendant, and no objection was made thereto by him. Besides, in our opinion, the plaintiff had a right, under the code, to make this amendment. The suit was commenced by his next friend before he became of age. While it was pending, his disability to sue was removed. He therefore had the right to have the name of his next friend stricken from the declaration, and the suit proceed in his own name. After this was done he had a right to amend by showing the property in controversy to be homestead or exempted property, and he had a right to name the
It follows from these views that there was no error in the judgment of the court refusing to set aside this verdict; and the judgment is Affirmed.