Grizzard v. Trammell , 72 Ga. App. 50 ( 1945 )

Where the defendants in a trover action disclaimed title, and a third person filed a petition claiming a part of the property, and the issue thus raised was tried both in the trial court and in the superior court on certiorari without the question of the legality of such a procedure being raised by the plaintiff, such irregularity was waived, and it was proper for the superior court to deny the certiorari assigning error on the overruling of the plaintiff's motion for a new trial on the general grounds.

DECIDED JANUARY 25, 1945. L. H. Grizzard instituted a bail-trover action in the civil court of Fulton County against Christine Trammell and Mrs. Fannie Coker to recover an electric phonograph and some phonograph records. The defendants disclaimed title or interest in the property. Helen Trammell filed a "petition" in the case claiming the phonograph as her property. Her petition was sworn to, but no bond or pauper affidavit was made. The issue formed by Helen Trammell's petition was tried, and resulted in a verdict in her favor, and the plaintiff's motion for a new trial was overruled. Petition for certiorari was filed in the superior court assigning error on the overruling of the motion for a new trial solely on the general grounds. The exception is to the overruling and denying of the certiorari.

The point is made for the first time in this court that a claim may not be filed in a trover action. Central Bank v.Georgia Grocery Co., 120 Ga. 883 (48 S.E. 325); Delaney v.Sheehan, 138 Ga. 510 (75 S.E. 632). Assuming that such a procedure is unauthorized where timely objection is made, unless the question is raised in the trial court it is waived. SouthernPacific Co. v. Davison-Paxon Co., 45 Ga. App. 719 (165 S.E. 862), and cit.; Jones v. Pierce, 192 Ga. 217 (14 S.E.2d 739). The court had jurisdiction of the subject-matter and parties. The most that can be said is that the procedure was not authorized. But unauthorized procedure can be waived. For illustration, if actions or parties are improperly joined the fact of such misjoinder is waived by a failure to make the point by plea, answer, or demurrer. The plaintiff below tried this case as if the so-called claimant was the defendant, and took his chances on recovering the property. He lost and cannot be heard now for the first time to say that the procedure was unauthorized. The court properly denied the certiorari.

Judgment affirmed. Sutton, P. J., and Parker, J., concur.