Fagan vs. McTier.

the same subject-matter, and in distinctly the same language as in the writ now pending, to the April quarterly term, 1885, of the county court, which had jurisdiction of the person and subject-matter, and at the October quarterly term thereafter the following judgment was rendered:

Judgment is hereby rendered for the defendant. October 12, 1885. "A. G. KING, Judge C. C., J. C." The plaintiff then appealed the case to the November term of the superior court, and at the trial the following judgment was rendered:

"It is, on motion of plaintiff's counsel, ordered that said case be dismissed at plaintiff's cost. November 12, 1885.

"R. W. CARSWELL, judge superior court, Middle circuit.” After hearing argument on the plea and on the agreed statement of facts, the court ordered the plea to be stricken; to which ruling the defendant excepted. It appears from the record that there was a verdict and final judgment of the court in this case, but the above is the only exception taken.

GAMBLE & HUNTER, for plaintiff in error.

W. L. PHILLIPS, contra.

SIMMONS, Justice.

The only complaint made by the bill of exceptions is, that the court erred in striking the plea of the defendant in the court below of a former recovery. The court' below held that, where a plaintiff instituted his suit in the county court, and the judgment in that court was for the defendant, and the plaintiff appealed to the superior court, and the case when called in the superior court was dismissed on the plaintiff's motion, and the plaintiff afterwards brought the same action in the superior court, plea by the defendant of a former recovery was not a

Fagan vs. McTier.

good plea to the second action.

We think this ruling

of the court below was right. When the plaintiff lost his case in the county court and entered an appeal from the judgment of that court to the superior court, the whole case was transferred from the county court to the superior court. Code, §3627. It was the same in effect as if it had been commenced originally in the superior court. The case was then pending in the superior court. The code, §3447, declares that "the plaintiff in any action in any court may dismiss his action either in vacation or in term time." The whole case having been transferred from the county court to the superior court, under this section of the code, the plaintiff had a right to dismiss it at any time, either in term time or vacation. When it was dismissed on his motion by order of the court, the whole case went out of court; and section 3446 of the code gives him the right to recommence his suit on the payment of costs. In our opinion, therefore, a defence to the second action, setting up the judgment for the defendant in the county court in the former action, was not a good defence to the second action. There is a difference between dismissing a case on appeal and dismissing the appeal. When the case is dismissed, the whole case goes out. is dismissed, it is an affirmance of the judgment in the court below," and the rights of all the parties are the same as if no appeal had been entered." Code, $3628. The code, as above cited, giving the plaintiff the right to dismiss his action at any time, and giving him the right to commence on payment of the costs when it has been dismissed or discontinued, we think it follows that the defendant cannot plead a judgment in the former case, which had been dismissed by the plaintiff on appeal, to a second suit brought by the plaintiff against the same defendant for the same cause of action.

Judgment affirmed.

When the appeal

The Mayor, etc. of Gainesville vs. Caldwell.

THE MAYOR, ETC. OF GAINESVILLE vs. Caldwell.

1. Though the charter incorporates the city under the name and style of the City of Gainesville, yet as it also declares that the municipal government is vested in a mayor and aldermen "who shall be styled the Mayor and Council of the City of Gainesville; and by that name are hereby made a body corporate; as such they shall have perpetual succession, shall have a common seal, may contract and be contracted with, may purchase or otherwise receive, hold, possess, sell and convey for the use of said city, real or personal estate of any kind, and may sue or be sued," a suit against "the Mayor and Council of the City of Gainesville," for negligently suffering an awning which extended over one of the sidewalks to be unsafe, by reason of which it fell upon the plaintiff and injured him, is well-brought so far as the corporate name is concerned.

2, 3. The verdict was not contrary to law, nor to evidence, nor excessive in amount.

4. A witness having been examined on interrogatories by commission duly issued, he was, prima facie, mentally competent to testify, and evidence subsequently taken tending to show that he was insane when examined, was for consideration by the jury under proper instructions from the court, and not for final adjudication by the judge presiding, there being also testimony in favor of sanity. 5. In charging the rule of ordinary diligence, the court may contrast it with extraordinary diligence to make the former more clear and better understood.

6. Irrelevant testimony which is immaterial or having but slight materiality, and which is not likely to have misled the jury, is not cause for a new trial.

May 7, 1888.

Actions. Verdict. Wit

Municipal corporations. Actions.

ness. Insanity. Charge of court. Diligence. Evidence. New trial. Before Judge WELLBORN. Hall superior court. August term, 1887.

Reported in the decision.

W. F. FINDLEY, II. H. PERRY, GEORGE K. LOOPER and F. M. JOHNSON, for plaintiff in error.

J. B. ESTES, CLAUD ESTES and M. L. SMITH, contra.

The Mayor, etc. of Gainesville vs. Caldwell.

BLECKLEY, Chief Justice.

This was an action for damages sustained in consequence of the falling of an awning which extended over a sidewalk in the city of Gainesville. The action was against the Mayor and Council of the City of Gainesville, and the declaration was demurred to because no action would lie against the corporation in that name. It is contended that the action should have been against the City of Gainesville; and the question turns upon the act embracing the charter of the city of Gainesville as now existing, approved February 28th, 1877, (acts 1877, p. 163.) The second section of that act is in these words: "That said city is hereby incorporated under the name and style of the City of Gainesville. The corporate limits thereof shall extend one mile in every direction, from the center of the court-house, as it is now situated." The third section of the act is in these words: "That the municipal government of said city shall be vested in a mayor and two aldermen from each ward of the city, as said wards now exist or may hereafter exist, who shall be styled the Mayor and Council of the City of Gainesville; and by that name are hereby made a body corporate. As such they shall have perpetual succession; shall have a common seal; may contract and be contracted with; may purchase or otherwise receive, hold, possess, sell and convey, for the use of said city, real or personal estate of any kind; and may sue or be sued."

1. The action was against the corporation by the name prescribed by the third section of the act; and as that is the only part of the act which prescribes how the corporation shall sue or be sued, we think the action was well-brought against the Mayor and Council of the City of Gainesville. The suggestion in argument was, that this was the corporate

The Mayor, etc. of Gainesville 18. Caldwell.

name of the governing power of the city, and not of the city. But it will be seen that the injury complained of was by the governing power of the city, and not by the city. It was not the duty of the city to keep the awnings over the sidewalks safe, and prevent them from injuring passers by; but it was the duty of the power that had control of the government of the city; and the custodians of this power are sued in this action. So we think the suit was well-brought.

2. The plaintiff recovered in what, I believe, was the third verdict, and the defendant made a motion for a new trial, because the verdict was contrary to law. We think it was not. "Because the verdict was contrary to law, in that the suit and verdict are against 'the Mayor and Council of the City of Gainesville."" This has been considered. "Because the verdict is contrary to evidence." We think that under the evidence, the verdict might have been either way. If we had been deciding it ourselves, we might have found differently from what the jury found; but their verdict is better than ours.

3. Because the verdict is unsupported by any evidence as to the amount of damages recovered, and the amount recovered is excessive. We do not find that it is excessive, by anything apparent in the record. It was between $800 and $900, and the injury was a very grave one. If the city was liable at all, the amount of the verdict was warranted by the evidence.

4. Because the court erred in not reading or hearing read the interrogatories of certain persons named, and the exemplification of the record of the South Carolina. lunatic asylum, which were offered to show that Turner, one of the witnesses for the plaintiff below, was insane at the time his interrogatories were executed; but left the question of the competency of Turner for the jury to pass upon, and allowed the interrogatories and exem