Freeman v. Maxwell Furniture Co.

Court of Appeals of Georgia

Freeman v. Maxwell Furniture Co.

73 S.E. 349, 10 Ga. App. 316, 1912 Ga. App. LEXIS 482

CourtCourt of Appeals of Georgia

DecidedJanuary 15, 1912

Docket3452

StatusPublished

Cited by2 cases

This text of 73 S.E. 349 (Freeman v. Maxwell Furniture 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.

Bluebook

Freeman v. Maxwell Furniture Co., 73 S.E. 349, 10 Ga. App. 316, 1912 Ga. App. LEXIS 482 (Ga. Ct. App. 1912).

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Opinion

Russell, J.

Upon the hearing the judge of the superior court entered a judgment sustaining the certiorari, with cost against the defendant in certiorari. No final direction was given to the, case, and, though the judge of the superior court, in his discretion, might have instructed the lower court upon the principles which should govern another trial, this duty was not mandatory. The sustaining of a certiorari, without the entry of a final disposition of the case, has the same effect as the granting of a new trial upon mdtion therefor.

There were several errors in the trial in the justice’s court, any one of which would have authorized the judge to sustain the certiorari. Nothing is better settled than the principle announced in Fair v. Metropolitan Life Insurance Co., 2 Ga. App. 376 (58 S. E. 498) : “Unless the judgment rendered is absolutely demanded by the evidence, the first grant of a new trial on certiorari will not be interfered with.” The case at bar seems to be controlled by the [317]*317ruling in Rhodes Furniture Co. v. Jenkins, 2 Ga. App. 475 (58 S. E. 897), but from the testimony in the record there is some question as to which -party rescinded the contract. Another trial may more satisfactorily resolve this doubt in favor of one party or the other. Judgment affirmed.

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Russell, J.

Upon the hearing the judge of the superior court entered a judgment sustaining the certiorari, with cost against the defendant in certiorari. No final direction was given to the, case, and, though the judge of the superior court, in his discretion, might have instructed the lower court upon the principles which should govern another trial, this duty was not mandatory. The sustaining of a certiorari, without the entry of a final disposition of the case, has the same effect as the granting of a new trial upon mdtion therefor.

There were several errors in the trial in the justice’s court, any one of which would have authorized the judge to sustain the certiorari. Nothing is better settled than the principle announced in Fair v. Metropolitan Life Insurance Co., 2 Ga. App. 376 (58 S. E. 498) : “Unless the judgment rendered is absolutely demanded by the evidence, the first grant of a new trial on certiorari will not be interfered with.” The case at bar seems to be controlled by the [317]*317ruling in Rhodes Furniture Co. v. Jenkins, 2 Ga. App. 475 (58 S. E. 897), but from the testimony in the record there is some question as to which -party rescinded the contract. Another trial may more satisfactorily resolve this doubt in favor of one party or the other. Judgment affirmed.

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Bluebook (online)

73 S.E. 349, 10 Ga. App. 316, 1912 Ga. App. LEXIS 482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeman-v-maxwell-furniture-co-gactapp-1912.

Opinion

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