Lee v. Brandenburg , 31 Ga. App. 794 ( 1924 )

Jenkins, P. J.

This was a default judgment in trover, where the plaintiff elected to take judgment for the property, together with rent or hire. There was opinion testimony fot the plaintiff as to the rental value of the property, and the judge directed a verdict accordingly. This was error. Minchew v. Nahunta Lumber Co., 5 Ga. App. 154 (4) (62 S. E. 716); Johnson v. Stevens, 19 Ga. App. 192 (91 S. E. 220). See also Hammock v. King, 146 Ga. 681 (92 S. E. 57); Graham v. Graham, 137 Ga. 668 (2) (74 S. E. 426); Baker v. Richmond City Mills Works, 105 Ga. 225 (31 S. E. 426). The judge therefore properly granted the motion for new trial. If the plaintiff in the court below, by the time the remittitur is made the judgment of that court, shall voluntarily write off from amount of the judgment the amount specifically awarded for rent, the judgment granting a new trial will be reversed; otherwise it will stand affirmed.

Decided March 13, 1924. A. D. Meador, for plaintiff. King & Johnson, for defendant.

Judgment reversed, on condition;

Stephens and Bell, JJ., concur.