Booth v. Schmoller & Mueller Piano Co.

Court of Appeals of Georgia

Booth v. Schmoller & Mueller Piano Co.

122 S.E. 636, 32 Ga. App. 35, 1924 Ga. App. LEXIS 236

CourtCourt of Appeals of Georgia

DecidedApril 15, 1924

Docket15282

StatusPublished

Cited by9 cases

This text of 122 S.E. 636 (Booth v. Schmoller & Mueller Piano Co.) 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.

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Booth v. Schmoller & Mueller Piano Co., 122 S.E. 636, 32 Ga. App. 35, 1924 Ga. App. LEXIS 236 (Ga. Ct. App. 1924).

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Opinion

Broyles, C. J.

1. “Under ‘the practice act’ of 1911 (Acts 1911, p. 149, sec. 3), the fact that there'was no formal approval of the grounds of the amendment to the motion for a new trial (the only entry thereon being ‘allowed and ordered filed’) will not withdraw such an amendment from the consideration of the reviewing court, or prevent this court from determining the merits of the amendment, unless the point was first raised and insisted on before the trial judge.” Mason v. State, 18 Ga. App. 224 (1) (89 S. E. 185); Eubanks v. Shewmake Brothers Co., 30 Ga. App. 315 (1) (117 S. E. 664).

(a) This ruling is not affected by the fact that in the instant ease, by agreement of the parties, the motion for a new trial was submitted to the judge without an oral hearing thereon, and “without either counsel for movant or respondent being heard or without either participating therein. ”

2. Applying the above ruling to the facts of the instant case the motion of defendant in error, “to dismiss and strike so much of the bill of exceptions as refers to the amended motion for a new trial, and further to strike the amended motion for a new trial for the reason that the same was not approved by the trial judge as required by law,” is denied.

3. As a general rule, the testimony of a person who has knowledge of the facts from which books of account are made up is as to those facts primary evidence, and is admissible, whether or not the books themselves are put in evidence. Harper v. Hammond, 13 Ga. App. 238 (3) (79 S. E. 44); Smith v. Southern Spring Bed Co., 16 Ga. App. 449, 451 (85 S. E. 612). Applying this ruling to the facts of the instant case, the court did not err in admitting in evidence, over the objections of the defendant, the depositions of the plaintiff’s witness, as complained of in the amendment to the motion for a new trial.

(a) The ease of Creamer v. Shannon, 17 Ga. 65 (63 Am. Dec. 226), cited by counsel for plaintiff in error, is distinguished from this case by its particular facts.

4. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

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Broyles, C. J.

1. “Under ‘the practice act’ of 1911 (Acts 1911, p. 149, sec. 3), the fact that there'was no formal approval of the grounds of the amendment to the motion for a new trial (the only entry thereon being ‘allowed and ordered filed’) will not withdraw such an amendment from the consideration of the reviewing court, or prevent this court from determining the merits of the amendment, unless the point was first raised and insisted on before the trial judge.” Mason v. State, 18 Ga. App. 224 (1) (89 S. E. 185); Eubanks v. Shewmake Brothers Co., 30 Ga. App. 315 (1) (117 S. E. 664).

(a) This ruling is not affected by the fact that in the instant ease, by agreement of the parties, the motion for a new trial was submitted to the judge without an oral hearing thereon, and “without either counsel for movant or respondent being heard or without either participating therein. ”

2. Applying the above ruling to the facts of the instant case the motion of defendant in error, “to dismiss and strike so much of the bill of exceptions as refers to the amended motion for a new trial, and further to strike the amended motion for a new trial for the reason that the same was not approved by the trial judge as required by law,” is denied.

3. As a general rule, the testimony of a person who has knowledge of the facts from which books of account are made up is as to those facts primary evidence, and is admissible, whether or not the books themselves are put in evidence. Harper v. Hammond, 13 Ga. App. 238 (3) (79 S. E. 44); Smith v. Southern Spring Bed Co., 16 Ga. App. 449, 451 (85 S. E. 612). Applying this ruling to the facts of the instant case, the court did not err in admitting in evidence, over the objections of the defendant, the depositions of the plaintiff’s witness, as complained of in the amendment to the motion for a new trial.

(a) The ease of Creamer v. Shannon, 17 Ga. 65 (63 Am. Dec. 226), cited by counsel for plaintiff in error, is distinguished from this case by its particular facts.

4. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

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122 S.E. 636, 32 Ga. App. 35, 1924 Ga. App. LEXIS 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booth-v-schmoller-mueller-piano-co-gactapp-1924.

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