Conkle v. Babb

Court of Appeals of Georgia

Conkle v. Babb

91 S.E.2d 789, 93 Ga. App. 405, 1956 Ga. App. LEXIS 753

CourtCourt of Appeals of Georgia

DecidedFebruary 17, 1956

Docket36007

StatusPublished

Cited by3 cases

This text of 91 S.E.2d 789 (Conkle v. Babb) 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

Conkle v. Babb, 91 S.E.2d 789, 93 Ga. App. 405, 1956 Ga. App. LEXIS 753 (Ga. Ct. App. 1956).

Pincite

Opinion

Felton, C. J.

1. The plaintiff in error contends that the cause for removal for failure to make annual returns arose when he failed to make his first return which was over 24 years ago and that the action is barred by’ the statute of limitations and by laches. This contention is without merit. An administrator is required to make a return on or before the regular term of court in January in each year. Code § 113-1409. The failure to make such returns is ground for removal. Code § 113-1229. The law contemplates that each failure to so make a return is an independent and separate cause for removal. Assuming but not deciding that the earlier failures to malee the returns are barred as being cause for removal, at least the most recent failure to do so is not barred. Since the petition alleged at least one good ground for removal, the court did not err in overruling the general demurrers. Port Wentworth Terminal Corp. v. Leavitt, 24 Ga. App. 650 (1) (101 S. E. 766).

2. The plaintiff in error had the alternative of excepting directly to the judgment directing a verdict or of complaining thereof in a motion for new trial. He moved for a new trial on the general grounds only. In his bill of exceptions he seeks to assign error on the direction of the verdict. This he cannot do. Having moved for a new trial, he should have complained of the direction of the verdict in the motion, and having failed to do so, he cannot assign error thereon in his bill of exceptions. Guarantee Trust Life Ins. Co. v. Hill, 90 Ga. App. 287 (2) (82 S. E. 2d 885) and cases cited.

3. Therefore, we consider only whether the evidence authorized the verdict. Since the evidence showed that the administrator had not filed any annual returns as required by law, and at least the latest failure is a ground for removal, the evidence authorized the verdict. Whether the verdict was authorized for other reasons is not necessary to decide.

Judgments affirmed.

Quillian and Niehols, JJ., concur.

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Felton, C. J.

1. The plaintiff in error contends that the cause for removal for failure to make annual returns arose when he failed to make his first return which was over 24 years ago and that the action is barred by’ the statute of limitations and by laches. This contention is without merit. An administrator is required to make a return on or before the regular term of court in January in each year. Code § 113-1409. The failure to make such returns is ground for removal. Code § 113-1229. The law contemplates that each failure to so make a return is an independent and separate cause for removal. Assuming but not deciding that the earlier failures to malee the returns are barred as being cause for removal, at least the most recent failure to do so is not barred. Since the petition alleged at least one good ground for removal, the court did not err in overruling the general demurrers. Port Wentworth Terminal Corp. v. Leavitt, 24 Ga. App. 650 (1) (101 S. E. 766).

2. The plaintiff in error had the alternative of excepting directly to the judgment directing a verdict or of complaining thereof in a motion for new trial. He moved for a new trial on the general grounds only. In his bill of exceptions he seeks to assign error on the direction of the verdict. This he cannot do. Having moved for a new trial, he should have complained of the direction of the verdict in the motion, and having failed to do so, he cannot assign error thereon in his bill of exceptions. Guarantee Trust Life Ins. Co. v. Hill, 90 Ga. App. 287 (2) (82 S. E. 2d 885) and cases cited.

3. Therefore, we consider only whether the evidence authorized the verdict. Since the evidence showed that the administrator had not filed any annual returns as required by law, and at least the latest failure is a ground for removal, the evidence authorized the verdict. Whether the verdict was authorized for other reasons is not necessary to decide.

Judgments affirmed.

Quillian and Niehols, JJ., concur.

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91 S.E.2d 789, 93 Ga. App. 405, 1956 Ga. App. LEXIS 753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conkle-v-babb-gactapp-1956.

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