McDonald v. Ellis

87 S.E. 711, 17 Ga. App. 471, 1916 Ga. App. LEXIS 703

• Court: Court of Appeals of Georgia
• Decided: January 11, 1916
• Docket: 6504
• Status: Published

Opinion

Broyles, J.

1. In a suit by a sheriff upon a bid at the sale of personalty (a mule),-under the provisions of sections 6068 and 6069 of the Civil Code, the bidder is estopped from setting up as a defense the invalidity of the sale, where, after bidding off the property, he was given possession of it, and removed it, so that the sheriff could not find it to resell it. Civil Code, § 5736; Mock v. Stuekey, 96 Ga. 187 (23 S. E. 307).

2. Under repeated rulings of' this court and of the Supreme Court, an assignment of error upon the refusal of the trial court to grant a non-suit will not be considered where the jury has rendered a verdict against the defendant, and he excepts to the refusal of a motion for a new trial, which. includes the ground that the verdict is unsupported by the evidence.

3. The court did not err in directing a verdict for the plaintiff for the full amount sued for, as, under the law and the evidence, such a verdict was demanded.

4. The ground of the motion for a new trial based on alleged newly discovered evidence can not be considered, as the affidavit of the alleged newly discovered witness was not accompanied by any affidavits as to his character and credibility, as required by section 6086 of the Civil Code.

5. The other assignments of error are without merit, and the court did not err in overruling the motion for a new trial. Judgment affirmed.