English & Davenport v. Hill , 116 Ga. 415 ( 1902 )

Adams, J.

The defendant in error obtained a verdict against the plaintiffs in error in a trover suit involving live stock. This verdict was directed by the judge of the court below, and a direct bill of exceptions was taken to this court. The evidence fully justified, if it did not require, the verdict rendered.

1, 2. The first two headnotes need no elaboration.

3. We are not authorized, under the assignment of error made in this bill of exceptions, to determine whether the evidence so plainly required the verdict as to justify its direction by the court below. The Civil Code provides that a bill of exceptions “ shall specify plainly the decision complained of, and the alleged error.” The present bill of exceptions recites as a matter of fact that the judge of the court below did direct a verdict; but it is nowhere averred, directly or indirectly, that this is complained of or was erroneous. The third assignment illustrates all except those covered by the first two headnotes. It is as follows: “ Because there was evidence sufficient to authorize the jury to find that C. C. Caldwell, by implication if not by express agreement, had áuthorized Mullins to sell the stock in controversy, and there was no evidence that J. L. Hill, the plaintiff in the court below, had ever withdrawn this consent.” It is not stated that the court erred in directing the verdict for the reason suggested in the assignment, and it nowhere appears in the bill of exceptions that it was filed to such direction. On the contrary, it is stated that the bill of exceptions is filed to the verdict and the judgment rendered on the verdict. Even if it were true that there was evidence upon which the jury might have found that the sale of the live stock was binding upon the defendant in error, it does not follow that the verdict rendered and the judgment entered thereon were illegal, or not justified. Had the bill of exceptions stated that the direction of the verdict was illegal, we could have dealt with any assignment of error complaining in proper terms of this direction.. The question of the sufficiency of the evidence (assuming that there is evidence on both sides as to any controlling question) can not be raised without a motion for a new trial.

Judgment affirmed.

All the Justices concurring, except Lumpkin, P. J., absent. ... .......