Louis Stix & Co. v. S. Pump & Co. , 36 Ga. 526 ( 1867 )

Warner, C. J.

Tile error assigned" to the judginent of the Court below in this case, is in refusing the motion for a new trial on the grounds specified therein. We will not control the discretion of the Court below in refusing to continue the case, upon the statement of facts exhibited by the record. The failure of the plaintiffs’ attorneys to state that they expected to prove by either of the witnesses any facts showing that the defendants were about to remove, was sufficient to sustain the judgment of the Court upon this point. The question in issue then before the Court to be tried, was whether the defendants’ were about to remove. ■■

The Court charged the jury, “ that if they"believed ffom the testimony, that the defendants were "not about to remove beyond the limits of the county oh the 14th day of December, 1866, the day on whioh said attachment was sued out, then they must find the issue in favor of the defendants.” We think the charge of the Court was rather too stringent in confining the inquiry of the jury to the precise day on which the attachment was sued out; for the party may, by his acts and conduct, show his intention to remove the day before sueing out the attachment, or about that time. Did the evidence show that the defendants were about to remove from the county on that day or about that time, so as to authorize the plaintiffs to take out an attachment on that day? Whether the plaintiffs are authorized' under the statute to sue chitan attachment on the ground’ stated, depends upon the acts and conduct of the defendants, showing" their intention at or about the time the attachment is - taken out. The verdict in this case being right under the evidence contained in the record, we will not reverse the judgment in refusing to grant a new trial.

Let the judgment of the Court below be affirmed.