Hunter v. Jones

Court of Appeals of Georgia

Hunter v. Jones

138 S.E. 263, 36 Ga. App. 816, 1927 Ga. App. LEXIS 334

CourtCourt of Appeals of Georgia

DecidedMay 12, 1927

Docket17838

StatusPublished

Cited by4 cases

This text of 138 S.E. 263 (Hunter v. Jones) 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

Hunter v. Jones, 138 S.E. 263, 36 Ga. App. 816, 1927 Ga. App. LEXIS 334 (Ga. Ct. App. 1927).

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Opinion

Bell, J.

1. In this proceeding to eject an intruder, under the Civil Code (1910), § 5380, the court allowed the counter-affidavit to be amended. The only exception to this ruling is contained in the plaintiff’s motion for a new trial. A ruling allowing an amendment to the pleadings can not be made a ground of the motion for a new trial. Simmons v. Lanford, 21 Ga. App. 686 (94 S. E. 907).

2. The amendment was to allow the insertion of- the word “legal” between the words “the” and “right,” as they appeared in the counter-affidavit. [817]*817No motion to continue tlie case was made on tlie ground of surprise (as to whether such a motion, if made, would have had the slightest merit, see Pitts v. Eppinger, 33 Ga. App. 354 (126 S. E. 303), but after the amendment was allowed the plaintiff moved for a continuance because the plaintiff’s counsel had just been employed and “had not had the time nor opportunity to examine the papers in the case and had not read them.” Both parties had announced ready at the call of the case for trial. The court did not err in overruling the motion to continue. See Civil Code (1910), § 5721.

Decided May 12, 1927. J. C. & H. E. Edwards, W. S. Paris, for plaintiff. R. C. Barney, J. A. Noyes, for defendant.

3. The court did not err in admitting in evidence a written agreement between the alleged owner of the premises and the defendant’s son, showing that the son was in possession of the premises as tenant of such alleged owner, the evidence showing, without dispute, that the defendant was occupying the premises solely in right of her son, as a member of his family. This agreement at least illustrated the defendant’s good faith, such being the only issue for determination in a case of this sort. And there being no evidence to show that the defendant did not enter and remain upon the land honestly and in good faith, the court properly directed the verdict in her favor. See Bagley v. Stephens, 78 Ga. 304 (2 S. E. 545); Lane v. Williams, 114 Ga. 124 (39 S. E. 919); Foreman v. Pelham, 8 Ga. App. 822 (70 S. E. 158); Sheats v. Blair, 7 Ga. App. 272 (66 S. E. 812). There was no error in refusing a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eoneur.

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Bell, J.

1. In this proceeding to eject an intruder, under the Civil Code (1910), § 5380, the court allowed the counter-affidavit to be amended. The only exception to this ruling is contained in the plaintiff’s motion for a new trial. A ruling allowing an amendment to the pleadings can not be made a ground of the motion for a new trial. Simmons v. Lanford, 21 Ga. App. 686 (94 S. E. 907).

2. The amendment was to allow the insertion of- the word “legal” between the words “the” and “right,” as they appeared in the counter-affidavit. [817]*817No motion to continue tlie case was made on tlie ground of surprise (as to whether such a motion, if made, would have had the slightest merit, see Pitts v. Eppinger, 33 Ga. App. 354 (126 S. E. 303), but after the amendment was allowed the plaintiff moved for a continuance because the plaintiff’s counsel had just been employed and “had not had the time nor opportunity to examine the papers in the case and had not read them.” Both parties had announced ready at the call of the case for trial. The court did not err in overruling the motion to continue. See Civil Code (1910), § 5721.

Decided May 12, 1927. J. C. & H. E. Edwards, W. S. Paris, for plaintiff. R. C. Barney, J. A. Noyes, for defendant.

3. The court did not err in admitting in evidence a written agreement between the alleged owner of the premises and the defendant’s son, showing that the son was in possession of the premises as tenant of such alleged owner, the evidence showing, without dispute, that the defendant was occupying the premises solely in right of her son, as a member of his family. This agreement at least illustrated the defendant’s good faith, such being the only issue for determination in a case of this sort. And there being no evidence to show that the defendant did not enter and remain upon the land honestly and in good faith, the court properly directed the verdict in her favor. See Bagley v. Stephens, 78 Ga. 304 (2 S. E. 545); Lane v. Williams, 114 Ga. 124 (39 S. E. 919); Foreman v. Pelham, 8 Ga. App. 822 (70 S. E. 158); Sheats v. Blair, 7 Ga. App. 272 (66 S. E. 812). There was no error in refusing a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., eoneur.

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138 S.E. 263, 36 Ga. App. 816, 1927 Ga. App. LEXIS 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunter-v-jones-gactapp-1927.

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