Brand v. Kennedy

71 Ga. 707

• Court: Supreme Court of Georgia
• Decided: November 6, 1883
• Status: Published

Opinion

Jackson, Chief Justice.

1. Where no notice to produce books is served on a party, he cannot be forced by the court to produce them, though they be in the town where the case is on trial. In the case in 55 Ga., 225, the book was in the pocket of the witness, and thus •'-he court-room, and had been referred to by him as containing an account material to the issue. That is not at all like this case, though cited by the plaintiff in error to sustain him, and the only case cited to that end.

2. It does not appear that the newly discovered testimony was unknown to all the counsel of the plaintiff in error. There was no error in overruling the motion on that ground.

3. By legal intendment in construing verdicts so as to stand, if the meaning can be ascertained with reasonable certainty, this verdict must be construed to mean, by a finding of “ homestead ” for applicant, the entire realty and personalty in issue on the application therefor and objection thereto. The verdict, therefore, covers the issues.

4. Exceptions that the judgment does not conform to the verdict, if sustained, would not require a new trial before a j ury, and will not therefore be considered as ground to support a motion for a new jury trial. In such cases the remedy is a motion to arrest or to set aside the judgment, dependent on the term when made whether the one or the other be the appropriate remedy.

The 10th, 11th and 12th grounds are not certified by the judge, and cannot therefore be considered. We fail to see that the verdict should be set aside and a new trial be awarded before the jury because it is unsupported by evidence and contrary to law. The judgment refusing the motion to set aside the verdict, and to try again the issues before the jury, must be affirmed.

Judgment affirmed.