Hillis v. Comer & Co.

Court of Appeals of Georgia

Hillis v. Comer & Co.

85 S.E. 931, 16 Ga. App. 653, 1915 Ga. App. LEXIS 180

CourtCourt of Appeals of Georgia

DecidedAugust 2, 1915

Docket6177

StatusPublished

Cited by5 cases

This text of 85 S.E. 931 (Hillis v. Comer & 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.

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Hillis v. Comer & Co., 85 S.E. 931, 16 Ga. App. 653, 1915 Ga. App. LEXIS 180 (Ga. Ct. App. 1915).

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Opinions

Broyles, J.

> 1. Upon its former appearance before this court (Hillis v. Comer & Co., 14 Ga. App. 30 (79 S. E. 930), the judgment of the court below in this case was reversed upon two grounds: £1) that, the copy of the mortgage attached to the affidavit of foreclosure not being sufficiently verified to meet the requirements of the statute, the court erred in overruling the affidavit of illegality, and (2) because there was no evidence then in the case which showed that the guano sold by the plaintiff to the defendant was used in the cultivation of the cotton levied upon, and, therefore, that the direction of a verdict in favor of the plaintiff was error. Before the remittitur of this court was made the judgment of the court below, the plaintiff, by leave of the court and over the objection of the defendant’s counsel, amended the foreclosure proceedings by introducing the original mortgage, and, upon motion, the case was placed on the docket for retrial. Held: A proper amendment to a petition can be made at any stage of the case, and a case brought to this court is still pending until the remittitur from this court is entered upon the minutes of the trial court. See C. & W. C. Ry. v. Miller, 115 Ga. 92 (41 S. E. 252); Thurmond v. Clark, 47 Ga. 501; Augusta Ry. Co. v. Andrews, 92 Ga. 706 (19 S. E. 713); Savannah Ry. Co. v. Chaney, 102 Ga. 814 (30 S. E. 437); Seaboard Air-Line Ry. v. Randolph, 126 Ga. 240 (55 S. E. 47). The court therefore did not err in allowing plaintiff’s amendment, or in ordering the cause to be retried.

2. Paragraph 6 of the defendant’s counter-affidavit was propeidy admitted in evidence, as this paragraph contained an implied admission by the defendant that he had used the fertilizers upon his cotton lands.

3. The plaintiff having introduced evidence which showed that the guano sold by it to the defendant was used in the cultivation of the cotton levied upon, and the defendant having offered no evidence whatever, the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Russell, O. J., dissents.

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Broyles, J.

> 1. Upon its former appearance before this court (Hillis v. Comer & Co., 14 Ga. App. 30 (79 S. E. 930), the judgment of the court below in this case was reversed upon two grounds: £1) that, the copy of the mortgage attached to the affidavit of foreclosure not being sufficiently verified to meet the requirements of the statute, the court erred in overruling the affidavit of illegality, and (2) because there was no evidence then in the case which showed that the guano sold by the plaintiff to the defendant was used in the cultivation of the cotton levied upon, and, therefore, that the direction of a verdict in favor of the plaintiff was error. Before the remittitur of this court was made the judgment of the court below, the plaintiff, by leave of the court and over the objection of the defendant’s counsel, amended the foreclosure proceedings by introducing the original mortgage, and, upon motion, the case was placed on the docket for retrial. Held: A proper amendment to a petition can be made at any stage of the case, and a case brought to this court is still pending until the remittitur from this court is entered upon the minutes of the trial court. See C. & W. C. Ry. v. Miller, 115 Ga. 92 (41 S. E. 252); Thurmond v. Clark, 47 Ga. 501; Augusta Ry. Co. v. Andrews, 92 Ga. 706 (19 S. E. 713); Savannah Ry. Co. v. Chaney, 102 Ga. 814 (30 S. E. 437); Seaboard Air-Line Ry. v. Randolph, 126 Ga. 240 (55 S. E. 47). The court therefore did not err in allowing plaintiff’s amendment, or in ordering the cause to be retried.

2. Paragraph 6 of the defendant’s counter-affidavit was propeidy admitted in evidence, as this paragraph contained an implied admission by the defendant that he had used the fertilizers upon his cotton lands.

3. The plaintiff having introduced evidence which showed that the guano sold by it to the defendant was used in the cultivation of the cotton levied upon, and the defendant having offered no evidence whatever, the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Russell, O. J., dissents.

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85 S.E. 931, 16 Ga. App. 653, 1915 Ga. App. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hillis-v-comer-co-gactapp-1915.

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