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The Chattanooga Stove Company vs. Adams.
court below, which were decided against the plaintiff in error there and are brought here for review : (1) whether the assignment set out in this record was valid or invalid; and (2) whether, if it was invalid, Adams, the assignee, was liable as executor de son tort. The court below held that the assignment was valid; and that if it was not, Adams was not liable as executor de son tort, and nonsuited the plaintiff. While we are inclined to think that this assignment was void, according to the decisions of this court in Turnipseed et al. vs. Schaefer et al., 76 Ga. 109; McMillan, trustee, vs. Knapp et al., Id. 171; and Fort vs. Martin Tobacco Co., 77 Id. 111, still we think the judgment of the court below granting this nonsuit was right, on the second ground. It appears from this record that Laney made to Adams a deed of assignment of all his property, consisting of dry goods, etc., for the benefit of his creditors, on the 26th of October, 1885; and Adams went immediately into possession of the same and commenced to dispose of them. On the 12th of November, 1885, Laney died, and Adams continued to sell and dispose of the property after his death. In the early part of 1886, he sold the balance of his stock remaining on hand at public outcry, and applied most of the proceeds in payment of the preferred debts specified in the deed of assignment. No attack was made on this assignment for fraud of any sort. So far as this record discloses, Adams acted in good faith in accepting the trust and disposing of the property and applying the proceeds to the debts mentioned in the assignment. The deed of assignment was made to him by Laney before his death, and Laney put Adams in possession of the property before his death. It is not a case where a person intermeddles after the death of the owner of the goods, but where the owner himself, under
Maddox et al. vs. Cole.
a deed which both thought was sufficient, put Adams in possession before his death. We do not think, under this state of facts, that Adams was liable as executor de son tort, although the deed under which he acted may have been void on account of a defect in the affidavit. Stewart vs. McMinn, 5 Watts & Sergeant, 100; Therasson vs. Hickok, 37 Vermont, 454.
MADDOX et al. vs. COLE.
1. There is sufficient evidence to sustain the verdict, and it is not con
trary to law. 2. After both sides have closed their testimony, it is in the discretion
of the court as to whether the case may be reopened for new testimony. This discretion is not abused where, by the exercise of proper diligence, the witness whose introduction is refused could have been brought to court in time, at least could have been reached with a subpæna, and if he failed to appear, a motion could have been made to continue the case because of his absence. May 21, 1888.
New trial. Practice. Reopening case. Diligence. Before Judge Boynton. Spalding superior court. August term, 1887.
The 6th ground of the motion for a new trial complained of the following as error: Cole had sworn that certain books were books of original entry, kept partly. by Porter, who was in Alabama, and partly by Richardson, who was dead. The books were afterwards introduced in evidence. One of plaintiff's counsel argued to the jury that, while there was conflict in the evidence, the preponderance was with plaintiff; stating that Cole's testimony would offset that of Maddox, but plaintiff had the testimony of Porter, and the sworn testimony of Richardson, a good old man, who was
Maddox et al. rs. Cole.
dead, etc. As to said ground, the court made this explanation: Judge Stewart (one of defendant's counsel) had referred to the character and standing of Richardson, and had insisted that he had not given evidence in the case except by entry on books. Opposing counsel spoke in high terms of Richardson and insisted that his testimony ought to be considered. When counsel for defendant interrupted, counsel for plaintiff stated that Richardson had not been sworn but he had made entries on books, and the books had been introduced. With this explanation on both sides, the court did not interfere.
STEWART & DANIEL and F.D. DISMUKE, for plaintiff in
E. W. HAMMOND, contra.
Cole sued W. V. and A. J. Maddox in the court below on an account for guano. On the trial of the case, the jury found a verdiet for Cole. Maddox made a motion for a new trial, which was overruled by the court, and he excepted. The first three grounds are the usual ones, that the verdict was contrary to law, to the evidence and the weight of evidence.
1. In our opinion there is no merit in these three grounds. There is sufficient evidence to sustain the finding of the jury. The verdict is not contrary to law, nor is it against the weight of evidence.
2. The 4th ground complains, in substance, of the refusal of the court to allow Alex. Eason to testify for the defendants. It appears from the record that the testimony for the plaintiff and the defendant had been closed, and after both parties had announced closed,
Gartrell 28. Clay.
Eason was brought into court and offered as a witness. The defendants stated that they knew all the time that they could prove certain facts by the witness; that he lived in the county, but that they had not been able to subpæna him or get him into the court until then.” The court refused to allow him to be sworn; and this is complained of as error.
After both sides have closed their testimony in the case, it is in the discretion of the court to allow the case to be reopened or not. This court will not undertake to control that discretion unless it has been abused. It was not abused in this case. By the exercise of proper diligence, this witness could have been brought to the court in time, at least, could have been reached with a subpæna; and if he failed to appear and his testimony had been material, a motion could have been made to continue the case on account of his absence. The parties in tkis case went to trial without him. The plaintiff introduced his testimony and the defendants replied; the plaintiff introduced testimony in rebuttal, and the defendants in surrebuttal, and both sides announced to the court that the case was closed; and we cannot say that he erred in refusing to allow this witness to testify at that stage of the case.
The 5th and 7th grounds of the motion are not approved by the court below, and hence cannot be considered by us. There is no error in the 6th ground of the motion, as it is explained by the judge.
GARTRELL vs. CLAY.
Where Gartrell sold furniture to one Sophie Johnson, reserving the
title, but the contract by which title was reserved until the goods were paid for was never executed and recorded as required by law,
Gartrell vs. Clay.
and said Sophie rented a house from Clay, who took out a distress warrant for the rent and had it levied on the furniture which had been left in the house by her, and had it sold under the levy, and no notice of any kind of the claim of Gartrell was shown to have been given to Clay until after the debt for rent accrued, though it may have been given before the suing out of the distress warrant, a verdict for Clay, in an action of trover for the furniture brought by Gartrell against him, was demanded by the evidence. Hence the verdict will not be set aside for errors committed by the court in its charge to the jury. Cohen & Co. vs. Candler, 79 Ga. 427, and Conder vs. Holleman & Ballard, 71 Ga. 93, cited and distinguished. May 28, 1888.
Conditional sales. Record. Notice. Before Judge HARRIS. City court of Macon. June term, 1887.
Reported in the decision.
STEED & WIMBERLY, H. F. STROHECKER and LYON & Estes, for plaintiff.
R. W. PATTERSON, for defendant.
It appears, from the record in this case, that Gartrell sold to one Sophie Johnson certain furniture. The first sale was made to her on February 30, 1883, of furniture amounting in the aggregate to the value of $134.75. She signed a written contract acknowledging the receipt from Gartrell of the furniture, and agreed to pay the $134.75 in instalments of $5 per week, and further agreed that said furniture was to remain the property of Gartrell until fully paid for. This contract was attested by one witness. There were three other papers similar in form to the one signed by Sophie Johnson, two of which were filled out with the description of other furniture sold to her, but were not signed by her. The other was a blank, not filled and not describing any