Harris & Mitchell v. McArthur , 90 Ga. 216 ( 1892 )

Judgment reversed.

When the case was called for trial, the plaintiff stated that Hamilton Clark, a material witness for him, was absent though duly subpoenaed; that he would testify that the timber had all been cut on lots numbers 154, 17b', 184, 185, 186/204, 205 and 209, before the filing of the suit; and that plaintiff would be ready for trial only in the event the defendants Avould admit the truth of said fact expected to he proved by the absent witness. Thereupon the defendants announced that they would admit that the timber was all cut on said lots, and the trial proceeded. After the plaintiff had concluded offering testimony, the defendants called the court’s attention to the fact that Hamilton Clark had come into court and was then present, stating that the admission of the fact above recited was made for the purpose of avoiding a continuance on the ground of the absence of the witness; and requested that, as the witness was in court, the defendants be allowed to withdraw their admission, and the plaintiff be required to prove by the witness the fact so admitted. The court held that the admission was unqualified and could not be withdrawn, to which ruling the defendants excepted.

The bill of exceptions sets forth many assignments of error upon the admission and rejection of evidence, and alleges that the verdict is contrary to the evidence and decidedly and strongly against the' weight of the evidence. In the Supreme Court counsel for the defendant in error moved to dismiss the bill of exceptions on the grounds, (1) that the errors assigned require a review of the evidence and the verdict, which could not be done by direct bill of exceptions, no motion for a new trial having been made; and (2) that there was no brief of the written evidence brought to this court for review. As to this motion see the third head-note.

After the evidence at the trial was closed, the court directed the argument to the jury to proceed. The defendants requested the court to give a written charge to the jury, according to the terms of the statute. After one of the attorneys for the defendants had concluded his argument, plaintiff’s counsel read to the court the law on which, he proposed to rely. The other attorney for the defendants rose to begin his argument, whereupon the court of its own motion, without any prior intimation that such direction of the case was thought of and in the absence of further ai'gument, directed a verdict for the plaintiff against the defendants for $2,300 with interest, and required a member of the jury to sign it as foreman. To this ruling also the defendants excepted.

Steed & Wimberly and Eason & Swain, for plaintiffs in error. J. E. Wooten and Smith & Clements, contra.