Gate City Fire Insurance v. Thornton

63 S.E. 638, 5 Ga. App. 585, 1909 Ga. App. LEXIS 68

• Court: Court of Appeals of Georgia
• Decided: February 9, 1909
• Docket: 1522
• Status: Published

Opinion

Powell, J.

1. The objection that an action is prematurely brought can be raised only by a timely formal plea in abatement, or, if the defect appears on the face of the pleading, by a special .demurrer filed at the first term. Realty Company v. Ellis, 4 Ga. App. 402 (61 S. E. 832), and cit.; Jester v. Bainbridge Bank, 4 Ga. App. 469 (61 S. E. 926).

Action on insurance policy, from city court of Waycross — Judge Myers. September 15, 1908.

Argued January 26, Decided February 9, 1909. W. I. Heyward, for plaintiff in error. A. B. Spence, contra.

2. A person in possession of personal property is presumed to be the owner, until the contrary appears. Where a fire-insurance company insures certain property as belonging to the insured, the burden is on the-insurance company, in an action on the policy, to prove that the insured did not own the property.

3. Even though one of the parties .to the case be sworn as a witness, he will not be required to answer as to the contents of a writing accessible-by proper diligence, over the objection that the writing is the highest and best evidence. While the answer might be an admission against, interest, it is not such an admission as the court may require of the party sworn as a witness.

4. Refusal to direct a verdict is not subject-matter for a valid exception, in this State. - Judgment affirmed.