Brower vs. Cothran, next friend, et al. (1.) Because the only service of the rule nisi to foreclose the mortgage was by leaving a copy at the residence of the defendant, as appeared from the entry of the sheriff. (2.) Because the record showed on its face that the judgment against her was illegal. The record of the foreclosure showed that J. H. McClung, the husband of the movant, made a note to J. F. Lewis & Son, with Dykes as security; that to secure the latter against loss, McClung and his wife made the mortgage to him; that he was compelled to pay the debt, and thereupon proceeded to foreclose the mortgage against the husband and wife; that service was made by the sheriff by leaving a copy at the residence of the defendants; and that no cause being shown against the foreclosure, a rule absolute was granted. The court granted the motion and set aside the judgment as to the movant. Respondent excepted.] BROWER 28. COTHRAN, next friend, et al. The time when the motion for new trial in this case was made, and the reasons why it was not made in term, were considered when this case was before the Supreme Court at the September term. 1883, and it was held that the motion should be dismissed. This is now res adjudicata. (a.) The fact that counsel thought that the mode of moving for a new trial, when the motion could not be prepared at length and the brief of evidence be fully made out at the trial term, was different from what the law required, furnishes no ground for an extraordinary motion for new trial; nor does the fact that the judge who presided agreed with counsel in this erroneous opinion, furnish ground for such a motion. (b.) It is unnecessary to consider the point made in regard to the presiding of the judge of the city court, as the two cases are practically the same, and both are covered by the former ruling of this court in this case. Judgment affirmed. January 6, 1885. Brower vs. Cothran, next friend, et al. JACKSON, Chief Justice. [In this case, Judge Brown, of the Cherokee circuit, presided; the testimony and charge of the court, being long, could not be obtained immediately from the stenog. rapher; and Judge Brown intended to leave next day, another judge holding court the next week. Counsel for defendant, against whom the verdict was rendered, took the following order: "The above stated case having been tried at this term, and the defendant, A. T. II. Brower, being dissatisfied with the verdict and decree, and desiring to make a motion for a new trial, and the evidence being voluminous, it is, on motion of counsel for said Brower, ordered by the court that he be allowed until the first Monday in May next to make out and file such motion, together with a brief of the evidence, and that pending said motion, the decree rendered on said trial be superseded; and that the movant serve upon counsel for the complainant a copy of said motion by the fourth Monday in March next, and that, as soon as the stenographer makes out the oral evidence, the same be filed in the clerk's office, subject to the inspection of both parties; and that such motion be set for hearing before the Hon. James R. Brown on that date at Canton, Georgia, or at such other time and place as the said judge may appoint, the parties having due notice." When the motion was called, counsel for plaintiff moved to dismiss it, as not made in term time, and because service had not been perfected as required in the order. This motion was overruled, and exception was taken thereto. The Supreme Court reversed the judgment below. (See 71 Ga., 357.) The motion for new trial also was overruled, and defendant excepted, but, on the making of the ruling just stated, he withdrew his bill of exceptions, "without prejudice," by permission of the court. Counsel for Brower thereupon amended the motion for new trial, alleging the reason why the motion was not made in term time, and praying that it be then heard. This motion came on before Hon. R. R. Harris, judge of the city court of Floyd county, who presided instead of Judge Branham. who was disqualified. He held that the Redding vs. The East Tennessee, Virginia and Georgia Railroad. case was res adjudicata, under the ruling of the Supreme Court, and dismissed the motion. Brower excepted. Counsel for Brower made an extraordinary motion for new trial, alleging substantially the same reasons therefor as above stated; and that the order was taken in accordance with the usual practice in the court, was not a consent order, and was taken with the belief, on the part of counsel and the presiding judge, that it was sufficient. This extraordinary motion was dismissed, on motion, and movant excepted.] REDDING US. THE EAST TENNESSEE, VIRGINIA AND GEOK GIA RAILROAD. In a suit by an employé against a railroad company for injuries inflicted by the negligence of a co-employé, it is incumbent upon the plaintiff to show that the injury was not the result of fault or negligence on his part. The question of negligence belongs peculiarly to the jury, and except in a clear case, where there is no con. flicting evidence as to whether the employé was in fault or was negligent, the court should not withhold the case from the jury by awarding a non-suit. Where the evidence upon this point was doubtful, it should have been submitted to the jury, and to grant a non-suit was error. 66 Ga., 170, 174, and citations. Judgment reversed. October 21, 1884. HALL, Justice. [Nias (or Ananias) Redding brought suit against the East Tennessee, Virginia and Georgia Railroad for a physical injury to him. On the trial, the evidence for the plaintiff showed, in brief, as follows: Plaintiff was a car-coupler for the defendant. It was the duty of the conductor or flagman to give signals to the engineer in coupling or uncoupling cars, and the train was under the general control of the conductor. At Baxley, the conductor went into the telegraph office, telling the plaintiff to leave two cars on the side track; the cab was uncoupled, and the train v-74-25 74 385 118 195 74 386 98 787 Carroll vs. The City of Atlanta. moved up and stopped, thus leaving the coupling links tight. In order to get them "slack," so as to get the pin out, plaintiff, after changing the switch, gave the usual signal to the engineer for that purpose; he then gave the signal to stop, and went between the cars while they were moving slowly, expecting the engineer to stop. In. stead of this, however, the engineer increased the speed, and ran back about a car-length and a half. Plaintiff moved back with the train; his foot was caught under the rail; and to save himself from being crushed to death, he threw his body outside of the rail and his leg was run over. At another place, plaintiff says that he attempted to get out, and his foot got hung. He also stated that he went between the cars before they came to a complete standstill; that if he had waited for this, he "never could have got the slack." The injury occurred before the cars were backed on to the side track. On motion, the court granted a non-suit. and plaintiff excepted.] CARROLL vs. THE CITY OF ATLANTA. This case, involving a claim to recover damages on account of the overflowing of lands lying on a stream below the city water-works, is similar, both in its facts and the law bearing on them, to the case of Brown vs. The City of Atlanta, 66 Ga., 71, and is controlled by it. Judgment affirmed. February 7, 1885. JACKSON, Chief Justice. [This was a suit against the city of Atlanta to recover damages alleged to have been done to crops on land lying on a stream below the reservoir of the city water works, by letting off water from the reservoir and flooding the land. The jury found for the defendant. Plaintiff moved for a new trial, which was refused, and he excepted.] Lowe, executor, et al. vs. Mann; Isbell vs. Stillwell. LowE, executor, et al. vs. Mann. A bill for the settlement of accounts and to obtain specific performance of a contract respecting a lot with the building thereon, is not a suit respecting the title to land. The proper venue of such a bill is the county of the residence of the substantial defendant; and the joining, as defendant, of two tenants of the real defendant, but without seeking any relief against them, will not give jurisdiction in the county where the land lies. Code, §§4183, 5169; 34 Ga., 53; 50 Id., 288, 290; 37 Id., 346. (a.) Want of jurisdiction in the county where the bill was filed appearing on its face, it should have been dismissed on demurrer. Judgment reversed. November 11, 1884. HALL, Justice. [Mann filed a bill against Lowe, executor, and others, to compel a settlement of accounts made between himself and the testator, and a specific performance of a contract concerning certain land and improvements in Spalding county. The bill was filed in Spalding county. The executor, who was the only substantial party, lived in Fulton county. Two other defendants were joined with him, who were tenants on the land in controversy, but no relief was prayed against them. A demurrer, for want of jurisdiction in the superior court of Spalding county, was overruled, and defendant excepted.] ISBELL vs. Stillwell. 1. The motion for a new trial should not have been dismissed. The facts show that the trouble arose out of sickness of the presiding judge. The movant and his counsel were not in laches. 2. The first grant of a new trial on evidence not sufficient to sustain the amount of the verdict in the opinion of the court below, will, not be scrutinized by this court, or interfered with, unless there be manifest abuse of discretion. Judgment affirmed. January 6, 1885. (Head-notes by the court.) |