115 Ga. 742 | Ga. | 1902
Mrs. Christian brought in a justice’s court an action against the railway company for the killing of a cow, laying her damages at $40. At the trial on an appeal in the magistrate’s court, she obtained a verdict for $50. The defendant thereupon sued out a certiorari, complaining that the verdict was contrary to law and the evidence, and making the special point that a verdict for $50 was unwarranted in an action wherein the plaintiff claimed only $40. The only testimony as to value offered on the trial before the jury was that of one witness, who swore that the cow was worth $50. Upon the question of liability the evidence was conflicting, though sufficient to sustain a finding in favor of the plaintiff. On the hearing of the certiorari in the superior court, she offered to write off from her judgment the sum of $10; and the judge accordingly passed an order in which provision was made for reducing the amount of the judgment to $40, and which contained a recital that, save as to amount, the verdict of the jury was approved, and the certiorari therefore overruled in so far as it related to the complaint of the defendant that no liability on its part was established by the evidence. To this action by the court below the railway company excepted.
' We certainly can not undertake to reverse the judgment complained of on the ground that the finding of the jury was unwarranted in so far as the question of the company’s liability was concerned. So the question upon which the case must turn is: did the-judge, under the facts appearing, have authority to give to it the direction above indicated? As a matter of course, a verdict for $50 in a suit wherein the pleadings authorize a recovery of no more
The cases of Grimsley v. Alexander, 106 Ga. 165, Holmes v. Pye, 107 Ga. 784, Walker v. Reese, 110 Ga. 582, and Railroad Co. v. Austin, 112 Ga. 61, establish the doctrine that while the superior court may on certiorari set aside a verdict unsupported by evidence, it can not properly, when there are issues of fact involved, render a final, judgment in favor of the plaintiff in certiorari. In other words, the superior court is without power to substitute for a verdict which it does not approve another which, in the opinion of the judge, the jury should have rendered. It is to be noted, however, that these cases are wholly unlike the one now before us. Here it is manifest that the judge was not of the opinion that the verdict under review was unsupported by the evidence, or open to attack on any ground save that it exceeded in amount the sum for which the plaintiff brought suit. The judge did not undertake to substitute for the verdict of the jury another of his own making in favor of the losing party, but merely took steps to cure their verdict in order that it might lawfully stand. In pur
Judgment affirmed.
