Newton v. Oglesby

148 S.E. 347, 39 Ga. App. 704, 1929 Ga. App. LEXIS 528

Opinion

Jenkins, P. J.

1. Tlie motion to dismiss the writ of error, which is based upon the alleged failure of the movant to present for approval, within the time fixed by order of court, a brief of the evidence adduced on the trial, must be denied, since it nowhere appears from the record that any such question was raised or passed upon by the court below. Ga. L. 1911, p. 143, § 3; Park’s Code (1914), § 6090(a).

2. In the instant suit in trover, while there was no proof on behalf of the plaintiff going to show a demand for the property and a refusal of the defendant to surrender it, there was proof of circumstances which authorized the jury to infer that after the mules which were the subject matter of the suit had been turned into defendant’s lot he converted them to his own use, and that this conversion took place prior to the bringing of the suit, so as to dispense with the necessity for a demand. See, in this connection, Merchants & Miners Transportation Co. v. Moore, 124 Ga. 482 (1, 2) (52 S. E. 802); Young v. Durham, 15 Ga. App. 678 (5) (84 S. E. 165). Accordingly, since the verdict of the jury has the approval of the trial judge, and the only grounds of the motion for new trial are the usual general grounds, the judgment of the court below overruling the defendant’s motion for new trial can not be disturbed. Judgment affirmed.

Stephens and Bell, JJ., concur.

B. G. Weathers, D. A. Bragg, for plaintiff in error. L. P. Strickland, contra.