Avery & Co. v. Sorrell

Court of Appeals of Georgia

Avery & Co. v. Sorrell

104 S.E. 26, 25 Ga. App. 641, 1920 Ga. App. LEXIS 121

CourtCourt of Appeals of Georgia

DecidedSeptember 17, 1920

Docket10916

StatusPublished

Cited by2 cases

This text of 104 S.E. 26 (Avery & Co. v. Sorrell) 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

Avery & Co. v. Sorrell, 104 S.E. 26, 25 Ga. App. 641, 1920 Ga. App. LEXIS 121 (Ga. Ct. App. 1920).

Pincite

Opinion

Stephens, J.

1. Where the record shows the rendition of a verdict in the trial court and also a motion for a new trial excepting thereto, a bill of exceptions, excepting to the overruling of the motion for a new trial, is not subject to dismissal as being prematurely brought to this court, upon the ground that, since there nowhere appears any record of a judgment having been entered upon the verdict, the record fails to show a final judgment.

2. This being a suit in trover wherein the evidence authorized a recovery for the plaintiffs, and the plaintiffs having elected to take a money verdict, but the jury having rendered a verdict awarding the property to them, the verdict was contrary to law, and, on their motion for a new trial, should have been set aside. Avery v. Sorrell, 145 Ga. 329 (89 S. E. 194).

3. There being no evidence that the attorney for the plaintiffs accepted from the defendant in full settlement of the plaintiff’s claim the property which was the subject-matter of the suit, it was error upon the part of the trial judge to instruct the jury that a tender of the property by the defendant to the plaintiffs’ attorney in full settlement of the plaintiffs’ claim and its acceptance by the plaintiffs’ attorney could defeat the plaintiffs’ right to a recovery of the value of the property.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.

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Stephens, J.

1. Where the record shows the rendition of a verdict in the trial court and also a motion for a new trial excepting thereto, a bill of exceptions, excepting to the overruling of the motion for a new trial, is not subject to dismissal as being prematurely brought to this court, upon the ground that, since there nowhere appears any record of a judgment having been entered upon the verdict, the record fails to show a final judgment.

2. This being a suit in trover wherein the evidence authorized a recovery for the plaintiffs, and the plaintiffs having elected to take a money verdict, but the jury having rendered a verdict awarding the property to them, the verdict was contrary to law, and, on their motion for a new trial, should have been set aside. Avery v. Sorrell, 145 Ga. 329 (89 S. E. 194).

3. There being no evidence that the attorney for the plaintiffs accepted from the defendant in full settlement of the plaintiff’s claim the property which was the subject-matter of the suit, it was error upon the part of the trial judge to instruct the jury that a tender of the property by the defendant to the plaintiffs’ attorney in full settlement of the plaintiffs’ claim and its acceptance by the plaintiffs’ attorney could defeat the plaintiffs’ right to a recovery of the value of the property.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.

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Bluebook (online)

104 S.E. 26, 25 Ga. App. 641, 1920 Ga. App. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avery-co-v-sorrell-gactapp-1920.

Opinion

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