35 S.E.2d 540 | Ga. Ct. App. | 1945
1. The action was rightly construed as one in trespass, and the court did not err in overruling the general demurrer of the non-resident defendants to the petition.
2. Where the only two defendants against whom the verdict was rendered resided out of the county, and the finding of the jury was in favor of the one defendant on account of whose residence in the county of the suit the court acquired jurisdiction, it was proper to arrest the judgment, on motion of the defendants against whom the verdict was returned.
3. The verdict for the alleged actual trespasser, and against the defendants charged with trespass through the acts of the former, was inconsistent and repugnant and should have been set aside, and the court erred in overruling the grounds of the motion attacking the verdict.
4. It was error to charge the jury in effect that they might relieve the alleged actual trespasser and find against the abetting trespassers.
5. The remaining special grounds are without substantial merit; and, since the case is to be tried again, the general grounds are not considered.
The defendant Burgin filed an answer denying liability; and the defendants, B. M. Garrett and B. A. Garrett, in a joint answer, also denied any liability. The Garretts jointly demurred to the petition, which was in two counts, upon the ground that it did not state a cause of action as to them because it alleged that Burgin converted the trees and manufactured them into lumber, and did not allege that the Garretts participated in the conversion of the trees, or in the manufacture of the same into lumber, or in the fruits thereof; and because they were improperly joined with the other defendant; and because the court did not have jurisdiction of them, as they were not residents of Randolph County, and no cause of action joint with the resident defendant was alleged. This demurrer was overruled. Exceptions pendente lite were duly filed to that ruling, and error is properly assigned thereon in the cross-bill of exceptions.
The case proceeded to trial and resulted in a verdict for the plaintiff and against the defendants, B. M. Garrett and B. A. Garrett, for $560.00. A motion in arrest of judgment was then filed by the Garretts upon the ground that the verdict was an adjudication that the plaintiff had no cause of action as to R. F. Burgin; and, as to the defendants against whom the verdict was found (not being residents of Randolph County), the court lost jurisdiction when it was determined that the plaintiff had no cause of action against Burgin, the only defendant residing in the county where the suit was filed. The plaintiff demurred generally and specially to the motion in arrest of judgment, upon the ground *63
that it did not set forth a cause of action, was lacking in proper parties respondent in that R. F. Burgin was a necessary party, and was multifarious; and because no brief of the evidence had been approved and filed. This demurrer was overruled. The plaintiff also filed an answer to the motion in arrest of judgment, and on oral motion of counsel for B. M. and B. A. Garrett, on the ground that the answer set forth no valid defense, it was stricken by the court. The court then passed an order, sustaining the motion in arrest of judgment and quashing the verdict as to the Garretts, and vacating and setting aside the judgment entered thereon. To the rulings overruling the plaintiff's demurrer to the motion in arrest of judgment, sustaining the motion to strike the plaintiff's answer to the motion in arrest of judgment, sustaining the motion in arrest of judgment, quashing the verdict, and setting aside the judgment thereon, the plaintiff duly filed exceptions pendente lite. The plaintiff also filed a motion for new trial on the usual general grounds and on nine special grounds. Exceptions to the overruling of that motion are also contained in the main bill of exceptions. Since the cross-bill complains of the ruling on the demurrer to the plaintiff's petition, it will be considered first.
1. The demurrer of the Garretts, the two defendants who did not reside in Randolph County, to the petition of the plaintiff, presents the contention that the essential allegations constitute an action in trover, and that the case as made by the petition sounded in trover and not in trespass. While some of the allegations sound much like an action in trover, and the question raised by the demurrer is not free of all doubt, we think that the court correctly construed the action as being in trespass, and properly overruled the demurrer. Even if the petition be construed as an action in trover, it is nevertheless based on a trespass. Joint trespassers residing in different counties may be sued in either county. Code, § 2-4304. "One who procures or assists in the commission of a trespass, or does an act which ordinarily and naturally induces its commission, is liable therefor as the actual perpetrator." Burns v. Horkan,
2. The decision of the trial court overruling the plaintiff's demurrer to the motion in arrest of judgment filed by the Garretts, the action in striking the plaintiff's answer to the motion in arrest of judgment, and the ruling sustaining the motion — thus setting aside the verdict of the jury and the judgment thereon — can best considered together. The basis of the motion in arrest of judgment was that the verdict exonerated Burgin, the only resident defendant; and that the court thereby lost jurisdiction of the Garretts, and the verdict against them alone was void as to them. Counsel for the plaintiff quite candidly concede that, if the position of the Garretts is well taken, all three of the rulings respecting the motion in arrest of judgment were correct. It seems to us that the clear-cut question presented has been definitely answered by this court. In a case apparently similar on its facts to this case, this court held that, where the only two defendants against whom the verdict was rendered resided out of the county, and the finding of the jury was in favor of the one defendant on account of whose residence in the county of the suit the court acquired jurisdiction, it was proper to arrest the judgment, on motion of the defendants against whom the verdict was returned. SeeTurner v. Shackleford,
3. Special grounds 1, 2, 3, and 7 of the amended motion for new trial attack the verdict, contending that it is totally null and void for uncertainty, ambiguity, repugnancy, and inconsistency; and that it is contrary to law because it does not cover the issues made by the pleadings and the evidence. "Verdicts shall have a reasonable intendment, and shall receive a reasonable construction, and shall not be avoided unless from necessity." Code, § 110-105. Verdicts are to be upheld if capable of legal intendment, construed in the light of the pleadings, the issues made by the evidence, and the charge of the court; the presumptions are in favor of the validity of a verdict, and if possible a construction will be given that will uphold it.McCollum v. Thomason,
The verdict under consideration is in these words: "We, the jury, find for the plaintiff against B. M. and B. A. Garrett, to pay for 70,000 feet stumpage at $8.00 per thousand, amounting to $560.00." Manifestly this verdict is neither uncertain nor ambiguous. Its meaning is plain and clear. It is in favor of the plaintiff, but is against only two of the defendants, B. M. Garrett and B. A. Garrett; and by implication it is a finding in favor of the other defendant, R. F. Burgin. See Van Leonard v.Eagle Phoenix Mfg. Co.,
4. Special ground 8 complains of the charge of the court on the form of the verdict, and that the jury could return a verdict for the plaintiff and against the Garretts, the defendants who resided out of the county, without returning a verdict against Burgin, the only resident defendant. Ground 9 alleges error in the failure to charge the jury, even without a written request, that they could not find a verdict against the non-resident defendants without also finding a verdict against the resident defendant. Counsel designates the first of these alleged errors as a sin of commission, and the last as a sin of omission. It is not contended that the verdict would have to be for the same amount of damages against all of the defendants, or that they would necessarily have to be guilty of the same type of trespass; but merely that the resident defendant would have to be a trespasser and liable in some amount before the non-resident defendants could be legally liable for any amount. Ordinarily, a jury may find a verdict for one joint defendant and against another joint defendant; but, under the facts of this case, and for the reasons pointed out in division 3 of this opinion, the charge as complained of in ground 8 was erroneous. A charge substantially as outlined in ground 9 would have been appropriate, but we do not consider it necessary to decide now whether the failure to give such charge, in the absence of a timely written request, was reversible error.
5. The remaining special grounds are without substantial merit, and, since the case is to be tried again, we do not pass upon the general grounds of the motion.
Judgment affirmed on cross-bill; affirmed in part, andreversed in part on main bill. Sutton, P. J., and Felton, J.,concur.