Long v. England

Court of Appeals of Georgia

Long v. England

113 S.E. 50, 28 Ga. App. 818, 1922 Ga. App. LEXIS 890

CourtCourt of Appeals of Georgia

DecidedJuly 24, 1922

Docket13173

StatusPublished

This text of 113 S.E. 50 (Long v. England) 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

Long v. England, 113 S.E. 50, 28 Ga. App. 818, 1922 Ga. App. LEXIS 890 (Ga. Ct. App. 1922).

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Opinion

Jenkins, P. J.

The only grounds of exception set forth in the defendant’s petition for certiorari are to the effect that the magistrate should have sustained his demurrer setting up that no bill of particulars was attached to the account sued on, and that a mistrial should have been declared on the ground that the jury were not sworn, which omission is alleged to have been discovered after the verdict had been rendered but before the jury had dispersed. The answer of the magistrate shows that the summons was amended by attaching a bill of particulars to the account sued on. It further shows that, while no motion for new trial was made, it was “ suggested ” that the jury had not been sworn, and that it could not be ascertained “ for certain ” whether or not the oath had been administered. Held:

1. “ No ground of error shall be insisted upon, on the hearing, which is not distinctly set forth in the petition ” for certiorari. Civil Code (1910), § 5199; Fouché v. Morris, 112 Ga. 143 (2) (37 S. E. 182); Brown v. Alexander, 112 Ga. 247 (37 S. E. 368); Perry v. Brunswick &c. Ry. Co., 119 Ga. 819 (47 S. E. 172).

2. In civil cases the presumption of law is that the jury were legally sworn. The answer of the magistrate does not rebut this presumption, and the record does not contain any evidence showing such omission.

Judgment affirmed.

Stephens, J., concurs.

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Jenkins, P. J.

The only grounds of exception set forth in the defendant’s petition for certiorari are to the effect that the magistrate should have sustained his demurrer setting up that no bill of particulars was attached to the account sued on, and that a mistrial should have been declared on the ground that the jury were not sworn, which omission is alleged to have been discovered after the verdict had been rendered but before the jury had dispersed. The answer of the magistrate shows that the summons was amended by attaching a bill of particulars to the account sued on. It further shows that, while no motion for new trial was made, it was “ suggested ” that the jury had not been sworn, and that it could not be ascertained “ for certain ” whether or not the oath had been administered. Held:

1. “ No ground of error shall be insisted upon, on the hearing, which is not distinctly set forth in the petition ” for certiorari. Civil Code (1910), § 5199; Fouché v. Morris, 112 Ga. 143 (2) (37 S. E. 182); Brown v. Alexander, 112 Ga. 247 (37 S. E. 368); Perry v. Brunswick &c. Ry. Co., 119 Ga. 819 (47 S. E. 172).

2. In civil cases the presumption of law is that the jury were legally sworn. The answer of the magistrate does not rebut this presumption, and the record does not contain any evidence showing such omission.

Judgment affirmed.

Stephens, J., concurs.

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Bluebook (online)

113 S.E. 50, 28 Ga. App. 818, 1922 Ga. App. LEXIS 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-england-gactapp-1922.

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