City of Atlanta v. Sciple

92 S.E. 28, 19 Ga. App. 694, 1917 Ga. App. LEXIS 311
CourtCourt of Appeals of Georgia
DecidedApril 5, 1917
Docket7750
StatusPublished
Cited by22 cases

This text of 92 S.E. 28 (City of Atlanta v. Sciple) 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
City of Atlanta v. Sciple, 92 S.E. 28, 19 Ga. App. 694, 1917 Ga. App. LEXIS 311 (Ga. Ct. App. 1917).

Opinion

Bloodworth, J.

Sciple brought suit against the City of Atlanta, alleging that the city had damaged him in the sum of $35,-000, because of facts briefly stated as follows: that he owned on Whitehall street in said city three pieces of property, on one of which was located a brick building known as 136 Whitehall street, and on the other lots a large two-story brick building known as Nos. 134, 136, 138 Whitehall street; that the city lowered the grade of said Whitehall street, and that the work in lowering the grade began about October 15, 1913, and lasted until about May 1, 1914, the street being closed in front of said building in the meantime; that in lowering said grade the plaintiff’s property was left high and inaccessible; that the lot on which was located the larger building was left approximately seven feet above the street, and the street and sidewalk in front of the other was cut down about ten feet, and he was forced to build a sub-story to put the stores on a level with the street as left after the grading; that the total rental value of said stores before the grading commenced was $635 per month, and that “during the time of said grading the street was entirely closed to vehicle traffic and almost' entirely closed to foot .traffic, and the transaction of any business was rendered, impossible, rendering the rental value of said stores nothing at all to the plaintiff.” By amendment the plaintiff alleged that prior to the grading, the market value of his property was $130,000, and after the grading only $105,000, and that he was damaged in the sum of $35,000 by the depreciation in the market value thereof.

The City of Atlanta denied liability, and alleged: that at no time was the street closed to traffic; that the stores thereon remained open, and that the stores of the plaintiff were not rented [696]*696either before or after said work, either because of price or location, and that the loss of rental was not due to the change of grade ; that the change of grade increased'the rental value of said property-thirty per cent. A trial resulted in a verdict for plaintiff for $3,500. Thereupon the City of Atlanta filed a motion for a new trial, which was overruled, and the case is before this court for review.

1. In addition to the general grounds the motion for a.new trial contains about a dozen special grounds, and in these is included unnecessary, and irrelevant matter, the insertion of which required considerable time and labor on the part of counsel, and in addition placed upon this court the necessity of searching through a great mass of “entirely needless phraseology” to discover the points sought to be made by the motion. In this connection attention is called to the case of Gate City Gas-Light Co. v. Farley, 95 Ga. 796 (23 S. E. 119), where the Supreme Court ruled that grounds of a motion for a new trial in which there are “tedious recitals of irrelevant facts, statements taken from the stenographic notes of the trial, and other like things, to such an extent as to bury the point under a great mass of entirely needless phraseology and thus render it difficult, if not impracticable, for this court to ascertain what was really the ruling or other conduct of the court complained of, will not be considered.” While the motion for a new trial must not contain “tedious recitals of unnecessary facts,” yet a ground of a motion for a new trial should be complete in itself, or rendered so by exhibits attached to the motion. Accordingly, it has been repeatedly ruled that a ground based upon the admission or rejection of evidence presents nothing for adjudication when the evidence is not set forth therein, either literally or in substance, nor attached as an exhibit to the motion. Patterson v. Campbell, 136 Ga. 664 (71 S. E. 1117); Odum v. Rutledge, 16 Ga. App. 350 (85 S. E. 361). It must affirmatively appear also what specific objections were made to the testimony at the time it was offered. Carlisle v. Ragan-Malone Co., 17 Ga. App. 435 (87 S. E. 608); McFarland v. D. & W. R. Co., 127 Ga. 97 (56 S. E. 74); Cooner v. State, 16 Ga. App. 539 (85 S. E. 688); Avery v. Armour Fertilizer Wks., 17 Ga. App. 458 (3) (87 S. E. 698); Cochran v. Bugg, 131 Ga. 588 (62 S. E. 1048). “This court sits to review rulings of the trial courts, and it will not pass upon ques[697]*697tions on which, no ruling has ever been made by the trial judge.” Bourquin v. Bourquin, 110 Ga. 440 (35 S. E. 710).

2. In the first ground of the amendment to the motion for a new trial it is alleged that the court erred “in admitting the following question and answer: Q. You were shown your tax returns for the State and county. Did you have any part in fixing the assessment by the city? A. No. In this ground it is stated that it was testified by plaintiff and admitted by defendant that the property was assessed by the city assessors “on a basis of sixty per cent, of its value, without any participation therein by the taxpayer.” It having been admitted on the part of the city that the property was thus assessed, it could not have been harmful to the city for the court to allow the plaintiff, a taxpayer, to testify that he had nothing to do in fixing the assessment of the city. Battle v. Braswell, 107 Ga. 128 (32 S. E. 838). In the case of W. & A. R. Co. v. Tate, 129 Ga. 526 (59 S. E. 266), the fourth headnote is as follows: “The return of a taxpayer, as contained in the tax-receiver’s digest, may be considered by the. jury on the issue of the value of the property therein included, as an admission. Such admission is not conclusive evidence of the value of the property. An instruction which does not in terms state that the jury may consider such return as in the nature of an admission, but states that they may consider it as a circumstance of the ease, will not require the grant of a new trial.” And in the opinion the court says: “The tax returns are in the nature of an admission by the taxpayer of the value of his property. It is not a conclusive admission of the true value of the property returned, but the admission in the return may be considered by the jury in estimating the value of the property.” By the tax returns in this ease it is sought to show contradictory statements made by the plaintiff as to- the value of his realty, and, could the tax returns be considered as an admission made by him, he ought at least be allowed to* show the circumstances under which the returns were made, the weight of the testimony under all the facts to be judged of by the jury. R. & D. R. Co. v. Kerler, 88 Ga. 39 (13 S. E. 833); Phoenix Insurance Co. v. Gray, 113 Ga. 424 (38 S. E. 992). In passing it might not be out of place to remark that should the tax returns of many of our “good men and true” be conclusive as to the value of their property,, numbers of fortunes in the State would shrink [698]*698and shrivel even as a ripe plucked fig when exposed to a summer sun.

3. Grounds 2, 8, and 10 of the motion for new trial complain of the admission of evidence as to the length of time the street was torn up and obstructed, and business interfered with.

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Bluebook (online)
92 S.E. 28, 19 Ga. App. 694, 1917 Ga. App. LEXIS 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-atlanta-v-sciple-gactapp-1917.