Ray v. Atlanta Trust & Banking Co. , 1900 Ga. LEXIS 828 ( 1900 )

Simmons, C. J.

1. "Where, upon the trial of a claim case, after evidence has been introduced, the claim is withdrawn, and the plaintiff in fi. fa. tenders an issue, asking damages against the claimant for having made the claim for delay only, and this issue is tried and a verdict given against the claimant for damages, the court can not consider complaints, in the motion for anew trial of the damage case, of rulings made in the trial of the claim case. "When the claim is withdrawn and the new issue made up of whether the claim was interposed for delay only, the latter is separate and distinct from the former. z

2. In the trial of this issue of whether the claim was made for delay only, it was not error to refuse to allow counsel for the claimant to testify as to what would have been the testimony of his client in the claim case if the court had allowed the case to be reopened and such evidence introduced.

3. In'the trial of such issue, evidence that the claimant had in tw’o other cases filed claims to different tracts of land, levied on by different parties, and had afterward withdrawn those claims, is not admissible, although such tracts of land were embraced in the same deed under which she claimed in this case.

4. In the present case there was no evidence to authorize a charge that “ If the claimant made this claim in the first instance in the honest belief that her title was good, and afterwards became convinced that it was not good and ought not to prevail, but did not withdraw her claim as soon as such discovery was made and the forms of law would admit, she would be liable for damages just as though the claim was made for delay only in the first instance.”

Argued June 13, — Decided July 13, 1900.

Levy and claim. Before Judge Lumpkin. Fulton superior court. September term, 1899.

John C. Reed and W. R. Hamm.ond, for plaintiff in error. Hunt & Qolightly and Westmoreland Brothers, contra.

5. The plaintiff failed in the present case to show affirmati vely that the claim was filed or prosecuted solely for the purpose of delay, and a verdict awarding damages was contrary to law.

Judgment reversed.

All the Justices concurring.