Howard v. DeSoto Banking Co.

88 S.E. 211, 17 Ga. App. 711, 1916 Ga. App. LEXIS 874

Opinion

Broyles, J.

1. The court did not err in excluding from evidence the purchase-money mortgage given- by Sherry Gaston in favor of J. J. Hanesley, dated October 30, 1909. Upon the back of the mortgage was written: “Payment received, October 28, 1910. J. J. Hanesley.” It did not appear that this mortgage had ever been transferred to Mrs. Mary B. Clay, who had possession of it at the date of the administrator’s sale, or to any one else, but, on the contrary, the above writing on the mortgage itself showed that it had been satisfied. Neither was it error for the court to exclude the defendant’s testimony offered in connection with this excluded mortgage.

Decided March 16, 1916.

Complaint; from city court of Americus — Judge Harper. April 17, 1915.

Wallis & Fort, for plaintiff in error. John A. & James A. Fort, contra.

f 2. The issues of fact in the case were submitted to the jury in the form of questions, and, so far as the record discloses, without objection by the defendant below, now the plaintiff in error. The jury having determined these issues of fact in favor of the plaintiff, the judgment was substantially correct, and the only one that could have been legally given.

3. There is no merit in the objection that the second question submitted to the jury was not answered by them, as their answer to the first question rendered the answer to the second one unnecessary.

4. Though the evidence was conflicting and the weight of the proof may be against the verdict, yet, it having been approved by the trial judge, this court would not be justified in disturbing it.

5. There is no substantial merit in any of the remaining assignments of error, and the court did not err in overruling the motion for a new ' trial.

Judgment affirmed.

Russell, G. J., absent.