Weeks v. Reliance Fertilizer Co.

97 S.E. 664, 23 Ga. App. 128, 1918 Ga. App. LEXIS 80

• Court: Court of Appeals of Georgia
• Decided: December 3, 1918
• Docket: 9802
• Status: Published

Opinion

Bloodworth, J.

1. “Where personal property 3s claimed by a third person, and the claim-affidavit and bond recite that it has been levied on, the claimant is estopped from saying the levy was not complete.” Cohen v. Broughton, 54 Ga. 296. See Scolly v. Butler, 59 Ga. 849 (2) ; Pearce v. Renfroe, 68 Ga. 194 (5a) ; Smith v. Camp, 84 Ga. 117 (7) (10 S. E. 539) ; Stroud v. Hancock, 116 Ga. 336 (42 g. E. 496) ; Oliver v. Warren, 124 Ga. 551 (53 S. E. 100, 4 L. R. A. (N. S.) 1020, 110 Am. St. R. 188), and cit. The pr-inciple announced in these decisions disposes of grounds 1%, 2, 3, 6, and 7 of the amendment to the motion for a new trial.

2. “A ruling of the court in sustaining or overruling a. demurrer, and in allowing or disallowing an amendment to pleading, can not be made the ground of a motion for a new trial; ’but direct exceptions should be filed to such ruling, if a review of it is to be had'.” Hawkins v. Studdard, 132 Ga. 265 (63 S. E. 852, 131 Am. St. R. 190). See Leathers v. Leathers, 132 Ga. 211 (2) (63 S. E. 1118); Brown v. Wilkes, 20 Ga. App. 92 (92 S. E. 553), and eases cited. This ruling disposes of grounds 4 and 5 of the amendment to the motion for a new trial.

3. “Where property has been levied on and a claim interposed, the claimant can not, for the purpose of protecting the property, show paramount title in a third person.” Rowland v. Gregg, 122 Ga. 819 (1), 821 (50 S. E. 949), and cases cited. This proposition disposes of ground 10 of the amendment to the motion for a new trial.

4. “This court can not consider exceptions to the refusal of the trial judge to comply with written requests to charge, unless it is made to appear that they were tendered to the court before the jury retired to consider the ease. Shirley v. Slate, 5 Ga. App. 611 (63 S. E. 583). In this ease it is not disclosed that the written requests to charge were so tendered.” Seaboard Air-Line Railway v. Barrow, 18 Ga. App. 261 (4) (89 S. E. 383); Civil Code (1910), § 6084; Dickey v. Grice, 110 Ga. 315 (2) (35 S. E. 291).

5. While there may be slight errors of statement, and some inaccuracies of 'expression, in the excerpts from the charge of the court of which complaint is made, they are not of such a character as would likely influence the jury in making a verdict. A new trial should not be granted on account of slight errors and inaccuracies of expression not calculated to mislead the jury.

7. None of the other alleged errors require the grant of a new trial.

Judgment affirmed.

Broyles, P. J., concurs. Stephens, J., not presiding.