Hartley v. McGee , 111 Ga. 882 ( 1900 )

Cobb, J.

1. In determining whether or not an answer filed to a petition raises an issue of fact which should be passed upon by a jury, it is not proper practice for the judge to propound to the defendant any question or questions, either with a view to eliciting from him a fact not stated in the answer, or to ascertaining the real meaning of the allegations in the answer. An error of this kind will not, however, if it has no material bearing upon the result reached, necessitate a reversal of the judgment.

2. When a petition distinctly and affirmatively alleges that a specified sum of money was placed in the hands of the defendant as county school commissioner for the purpose of paying the same to his predecessor in office, and the answer does not deny these allegations but, in effect, admits the same to be true, no issue of fact is thus presented, although the answer may make the point that, as matter of law, the former school commissioner was not entitled to receive tlie fund in question. The issue thus raised is one of law and not of fact.

Argued July 20, — Decided August 7, 1900.

Mandamus. Before Judge Felton. Crawford superior court. June 8, 1900.

M. G. Bayne, for plaintiff in error. Hardeman & Moore, contra.

3. As the present bill of exceptions assigns no error except that the court erred in holding that no issue of fact had been raised for a jury to pass upon, and as the point thus made was not well taken, no cause for reversing the. judgment has been shown.

Judgment affirmed.

All the Justices concurring.