Herndon v. Chamberlin

Court of Appeals of Georgia

Herndon v. Chamberlin

125 S.E. 780, 33 Ga. App. 253, 1924 Ga. App. LEXIS 830

CourtCourt of Appeals of Georgia

DecidedDecember 15, 1924

Docket15534

StatusPublished

This text of 125 S.E. 780 (Herndon v. Chamberlin) 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

Herndon v. Chamberlin, 125 S.E. 780, 33 Ga. App. 253, 1924 Ga. App. LEXIS 830 (Ga. Ct. App. 1924).

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Opinion

Jenkins, P. J.

“In an action for tlie recovery of damages on account of a conversion, proof of a demand and a refusal is only required as evidence of the conversion; and where the conversion is shown by other evidence, such proof is not essential.” Merchants & Miners Trans. Co. v. Moore, 124 Ga. 482 (52 S. E. 802); Beasley v. Cen. of Ga. Ry. Co., 29 Ga. App. 584 (1) (116 S. E. 227). Likewise, it is unnecessary to prove a demand and refusal, or any other conversion of the property, where the defendant in his answer admits possession in himself and denies the plaintiff’s averments of title. Securities Trust Co. v. Marshall, 30 Ga. App. 379 (3) (118 S. E. 478); Smith v. Commercial Credit Co., 28 Ga. App. 403 (1) (111 S. E. 821). The fact that the plaintiff’s petition, in the usual trover form, alleged demand and refusal did not render proof thereof necessary for a recovery, where the defendant’s answer claimed lawful possession in himself through title in another, and wholly denied the plaintiff’s title and right. The instructions with reference to demand and refusal being erroneous, a new trial should have been granted.

Judgment reversed.

Stephens and Bell, JJ., concur. J. A. Mitchell, for plaintiff. Iiawes Cloud, for defendant.

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Jenkins, P. J.

“In an action for tlie recovery of damages on account of a conversion, proof of a demand and a refusal is only required as evidence of the conversion; and where the conversion is shown by other evidence, such proof is not essential.” Merchants & Miners Trans. Co. v. Moore, 124 Ga. 482 (52 S. E. 802); Beasley v. Cen. of Ga. Ry. Co., 29 Ga. App. 584 (1) (116 S. E. 227). Likewise, it is unnecessary to prove a demand and refusal, or any other conversion of the property, where the defendant in his answer admits possession in himself and denies the plaintiff’s averments of title. Securities Trust Co. v. Marshall, 30 Ga. App. 379 (3) (118 S. E. 478); Smith v. Commercial Credit Co., 28 Ga. App. 403 (1) (111 S. E. 821). The fact that the plaintiff’s petition, in the usual trover form, alleged demand and refusal did not render proof thereof necessary for a recovery, where the defendant’s answer claimed lawful possession in himself through title in another, and wholly denied the plaintiff’s title and right. The instructions with reference to demand and refusal being erroneous, a new trial should have been granted.

Judgment reversed.

Stephens and Bell, JJ., concur. J. A. Mitchell, for plaintiff. Iiawes Cloud, for defendant.

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Bluebook (online)

125 S.E. 780, 33 Ga. App. 253, 1924 Ga. App. LEXIS 830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herndon-v-chamberlin-gactapp-1924.

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