31 Ga. App. 75 | Ga. Ct. App. | 1923
C. B. Boark brought an action in trover against Hugh Whelchel, and recovered, electing a money verdict. The defendant excepted to the overruling of his motion for a new trial.
The evidence of the plaintiff tended to show that after some association between the parties in Atlanta he loaned to the defendant his automobile,—the property in dispute,—and that on failure of the defendant to return it within the terms of the bailment he instituted possessory-warrant proceedings in Hall county for its recovery, where the defendant had gone and was still in the possession of the property. It appears that oar the trial of the possessory-warrant ease a judgment was awarded in favor of the defendaait. The plaintiff gave notice of certiorari, and the property was held by the officer. Certiorari, however, was not pursued, but the plaintiff instead brought his action in trover before the property had been restored to the defeardaart. It appears that the defendant asserted in that proceediaig, and even before then, that he had procured the possession of the property from the plaintiff by purchase, thus claianing it as his own. He so testified on the trial of the present action. His answer to the present suit admitted the plaintiff’s averment of his refusal to deliver, denied the plaintiff’s title, and asserted ownership iai himself by virtue of the alleged purchase. There was a pointed conflict iaa the evidence of the parties as to whether the transaction between them was a loan or a sale, and on this issue a finding would have been warranted for either party. The further material facts will be stated iaa. the opinion.
In the amended motion for a new trial the defendant assigns error upon the action of the court in excluding froan evideaa.ce the possessory-warrant proceedings, with the judganent of the magistrate thereoao., the saane having beeaa offered, as alleged in the motion, “for the purpose of explaining possession of the automobile sued for, and in support of the allegatioais of defendant’s answer as to said possession, counsel for defendaaat stating: fIt shows the fact that we held possession of the car, and the possessory-warrant
The assignments of error referred to above, embracing grounds 4, 5, 6, and 7 of the motion for a new trial, will be treated together. At the outset it must be borne in mind that the defendant by his answer solemnly admits in judicio that he refuses to deliver the property, as the plaintiff had alleged, and that he denies the plaintiff’s title, asserting complete and absolute ownership in himself. The gist of an action of trover is the conversion of the plaintiff’s property by the defendant. It is not always necessary to prove possession in the defendant at the time of the bringing of the action, in order to establish a conversion. Miller v. Wilson,
Where in the answer to a trover action the defendant sets up title adverse to the plaintiff and admits a refusal to deliver, it is not necessary that the plaintiff shall show by evidence a demand for the property prior to the suit. Collins v. Hilton, 27 Ga. App. 439 (2) (108 S. E. 824). A refusal presupposes a demand. It does not constitute the conversion, but is evidence thereof. Sappington v. Rimes, 21 Ga. App. 810 (1) (95 S. E. 316). Where a
Facts positively alleged in a pleading are constructive admissions in favor of the opposite party of the facts so alleged, and therefore need not be proved by other evidence. Their author, by introducing them and making them a part of the record, precludes himself from disputing their truth. They estop him so long as they stand. Civil Code (1910), § 5775; Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138 (1) (33 S. E. 945); New Zealand Insurance Co. v. Brewer, 29 Ga. App. 773 (6) (116 S. E. 922).
The defendant contends that he came lawfully into possession of the property or at least that this was adjudicated by the magistrate in the possessory-warrant proceedings. A demand and refusal would ordinarily be necessary under such circumstances. It probably would have been necessary in the instant case, in view of the judgment of the magistrate, but for the nature of the contentions which are made by the defendant in his answer. In Wallis v. Osteen, 38 Ga. 250, 251, the Supreme Court, in referring to the effect upon a trover action of a judgment in favor of the defendant in a prior possessory-warrant proceeding, said: “The question made by the record in this case is whether the plaintiff in the court below could maintain his action of trover for the watch, against the defendants, without shewing title in himself thereto? The defendants had the possession of the watch, under the judgfnent of a judge or justice, as provided by the 3959th sec
If the plaintiff in the case at bar had relied, not upon the general title to the automobile, but merely upon a right of possession, he would probably have been precluded by the adjudication in the possessory-warrant proceedings, but having shown a general property in the automobile or title thereto in himself, he has established his right to the possession of it by “construction of law.”
On the question of possession: the sheriff, after the judgment in the possessory-warrant case, held the property for the defendant, the plaintiff having abandoned his intention to certiorari (Sumner v. Bell, 118 Ga. 240, 44 S. E. 973; Barton v. Thompson, 13 Ga. App. 786, 787, 80 S. E. 30), and it is shown in the answer, as well as in the evidence, that the defendant obtained the possession from the officer after the beginning of the pres'ent ,'suit, by executing the usual replevy bond. The case does not.-calhfor an application of the principle that trover will not lie for the recovery of property in the custody of the law (Chipstead v. Porter, 63 Ga. 220; Geer v. Thompson, 4 Ga. App. 756 (2), 62 S. E. 500; Barton v. Thompson, supra), the action not being against the sheriff, and that custody having been ordered released. In Peoples Bank v. Pierce, 143 Ga. 563 (1) (85 S. E. 860), the custody of the-law had continued.
■ In view of the defendant’s answer, which in effect conceded a conversion, unless he sustained his own claim of title, there was nothing in the judgment of the magistrate in the possessory-warrant proceedings, or in the fact that the property seized thereunder had not been restored to him, which had any bearing on the case.
It follows from what is said above that there was no merit in^ any of the grounds of the motion for a new trial thus far referred to.
Exception is taken to the refusal of the court to charge as follows: “Without any intimation as to the facts in this case, but simply as a rule of law, I charge yon, that if the plaintiff C. R. Roark and the defendant Hugh Whelcliel entered into a consent or agreement whereby one of them was to use the automobile in question for the purpose of violating the prohibition law, and the defendant Hugh Whelcliel obtained the automobile for this purpose, and in pursuance of’ such an agreement between him and Roark, then the law would not aid either of them, and would leave both parties where it found them; and if this was the case, and the plaintiff C. R. Roark parted with possession of the car for such an illegal purpose, he could not recover it in this case, and your verdict would be for the defendant.” We do not find it necessary to determine whether such a charge would have been authorized by the pleadings, for clearly no issue such as the charge would have submitted was involved under the evidence. J. G. Tatum a witness for the plaintiff testified on cross-examination: “I heard something down there about a contract between Mr. Whelcliel and Mr. Roark, where Roark was to furnish the car and Mr. Whelcliel was to take the car, go after- the liquor, and they were to split the profits, but wouldn’t swear just what it was., No,. I didn’t tell Mr. Mathews that this-conversation occurred;, we talked, about-it, but I can’t recall all that was said. Best I remember' about it, Clarence [the plaintiff] didn’t want no liquor ‘hauled with his car. I wouldn’t swear, that it was finally agreed for. Roark to furnish the car and for Whelchel to go after the liquor, or wasn’t. I didn’t tell Mr. Mathews that in a conversation some time ago. No, I cannot remember now whether or not a conversation of that kind did occur; I was- not there all the time. If it .occurred in my
The only other special assignment in the motion for a new trial complains that an excerpt from the charge was argumentative and contained an expression of opinion; but the exception is clearly without merit.
The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.
Judgment affirmed.