Attaway v. Herrington

Court of Appeals of Georgia

Attaway v. Herrington

66 S.E. 1036, 7 Ga. App. 381, 1910 Ga. App. LEXIS 303

CourtCourt of Appeals of Georgia

DecidedFebruary 10, 1910

Docket2035

StatusPublished

This text of 66 S.E. 1036 (Attaway v. Herrington) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Attaway v. Herrington, 66 S.E. 1036, 7 Ga. App. 381, 1910 Ga. App. LEXIS 303 (Ga. Ct. App. 1910).

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Opinion

Hill, C. J.

1. Section 5547, paragraph 3, of the Civil Code declares that “no case shall he dismissed by the Supreme Court for want of service, when the party benefited by. a failure to serve shall — if the bill of exceptions and a copy of the record in any case shall be in the hands of the clerk of the Supreme Court — waive service and agree that said case may be heard.” This part of the section does not require that the waiver of service and the agreement to hear the case shall be made on or annexed to the bill of exceptions. There is a sufficient compliance with this section where a written waiver of service and agreement to hear the ease is made by the party benefited by the failure to hear, or by his attorney of record, and entered in the case and filed therewith by the clerk of the Supreme Court (or Court of Appeals). Crovatt v. Baker, 130 Ga. 511 (61 S. E. 127). The motion to dismiss is without merit.

2. The owner of certain turpentine cups and gutters leased them for the year 1907. The lessee used them on rented land, and, at the expiration of his lease, left them on the land. The owner of the land refused to surrender them to their owner on demand, and retained them in his possession. Eeld, that possessory warrant was an appropriate” remedy to test the right of the landowner to hold possession of the turpentine cups and gutters.

3. The petition for the writ of certiorari showing no error of law, and the finding of the trial court being supported by the evidence, the judge of the superior court did not err in refusing to grant the writ.

Judgment affirmed.

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Hill, C. J.

1. Section 5547, paragraph 3, of the Civil Code declares that “no case shall he dismissed by the Supreme Court for want of service, when the party benefited by. a failure to serve shall — if the bill of exceptions and a copy of the record in any case shall be in the hands of the clerk of the Supreme Court — waive service and agree that said case may be heard.” This part of the section does not require that the waiver of service and the agreement to hear the case shall be made on or annexed to the bill of exceptions. There is a sufficient compliance with this section where a written waiver of service and agreement to hear the ease is made by the party benefited by the failure to hear, or by his attorney of record, and entered in the case and filed therewith by the clerk of the Supreme Court (or Court of Appeals). Crovatt v. Baker, 130 Ga. 511 (61 S. E. 127). The motion to dismiss is without merit.

2. The owner of certain turpentine cups and gutters leased them for the year 1907. The lessee used them on rented land, and, at the expiration of his lease, left them on the land. The owner of the land refused to surrender them to their owner on demand, and retained them in his possession. Eeld, that possessory warrant was an appropriate” remedy to test the right of the landowner to hold possession of the turpentine cups and gutters.

3. The petition for the writ of certiorari showing no error of law, and the finding of the trial court being supported by the evidence, the judge of the superior court did not err in refusing to grant the writ.

Judgment affirmed.

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Bluebook (online)

66 S.E. 1036, 7 Ga. App. 381, 1910 Ga. App. LEXIS 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/attaway-v-herrington-gactapp-1910.

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