Sullivan v. Dixon

34 S.E.2d 318, 72 Ga. App. 507, 1945 Ga. App. LEXIS 621

• Court: Court of Appeals of Georgia
• Decided: June 1, 1945
• Docket: 30848.
• Status: Published

Opinion

Pabkee, J.

1. The first grant of a new trial will not be disturbed by the appellate cfturt, unless it appear that the trial judge abused his discretion in granting it, and that the law and facts require the verdict. Code, § 6-1608; Williams v. Rowe, 26 Ga. App. 391 (106 S. E. 299), and cit.

2. Where the plaintiff, in an action of trover for the conversion of lumber cut from timber wrongfully taken from his land, introduces uncontradicted testimony as to the estimated quantity of the timber received by the defendants, and as to the estimated highest market value thereof, such evidence would be sufficient to authorize a verdict in some amount for the plaintiff; and where the undisputed evidence shows that the defendants received the lumber and exercised dominion over it in a manner inconsistent with the owner’s rights, a conversion is shown although no demand and refusal are proved. Under such evidence and the law applicable thereto it can not he said that a verdict for the defendants was required. Milltown Lbr. Co. v. Carter, 5 Ga. App. 344 (63 S. E. 270); Council v. Nunn, 41 Ga. App. 407 (153 S. E. 234).

Decided June 1, 1945. Dykes & Dykes, for plaintiffs in error. R. S. Wimberly, contra.

3. Where' the defendants except to the grant of a new trial, and that judgment is affirmed, their exceptions pendente lite assigning error on an antecedent ruling can not he considered by this court, as the case is still pending below. Ogletree v. Livingston, 125 Ga. 548 (2) (54 S. E. 625); Athens Elec. Ry. Co. v. Jackson, 125 Ga. 551 (2) (54 S. E. 626); Armour & Co. v. Burkhalter, 130 Ga. 370 (2) (60 S. E. 850); Purser v. Thompson, 135 Ga. 732 (2) (70 S. E. 569); Peninsular Naval Stores Co. v. Georgia, 144 Ga. 108 (2) (86 S. E. 223).

Judgment affb-med.

Sutton, P. J., and Felton, J., concur.