Scott & Son v. Newberry

156 S.E. 641, 42 Ga. App. 432, 1931 Ga. App. LEXIS 805

Opinion

Broyles, C. J.

Scott & Son sued Newberry to recover $2 by reason of the following facts: Sosbee' owed Scott & Son $8 on an open account. There was some evidence authorizing a finding that Newberry owed Sosbee $2 for “a load of wood;” and that with the consent of all three parties a verbal agreement was made between Newberry and Scott & Son that Newberry was to pay the $2 to Scott & Son, instead of to Sosbee, and that Scott & Son were to give credit to Sosbee for such payment. The evidence as to this novation was in sharp conflict, but the verdict in favor of the plaintiffs for $2 was authorized by the evidence. Newberry obtained a writ of certiorari, and on the hearing thereof the judge sustained the certiorari and entered up a final judgment for costs in favor of Newberry. Under the facts of the case the court had the discretion to sustain the certiorari, on the ground that the preponderance of the evidence was against the verdict,- but the rendering of a final judgment for the plaintiff in certiorari was error. A new trial should have been ordered.

Judgment reversed.

Luke and Bloodworth, JJ., concur.