Hartley v. Marietta Nursery Co. , 138 Ga. 736 ( 1912 )

Atkinson, J.

1. When in a bill of exceptions it is recited that the same was tendered “within thirty days from the date of the decisions and judgments complained of,” the writ of error will not be dismissed because of the failure of the presiding judge to certify the same within the statutory period, unless it be made to appear that his failure to do so was caused by some act of the plaintiff in error or his counsel. Civil Code, § 6187; Proctor v. Piedmont Cement Co., 134 Ga. 391 (67 S. E. 942).

2. Proof of weakness of mind, not amounting to imbecility, is not sufficient to warrant a jury in setting aside a contract, there being no proof of fraud or undue influence. Johnson v. Coleman, 134 Ga. 696 (68 S. E. 480). But where there was evidence tending to show that the party making the contract was generally of weak mind, and a physician who had attended him for several years, whose testimony was corroborated by other evidence, testified: “His condition mentally and physically grew weaker and weaker from 1902 to 1907 as a result of the epileptic fits which he had. I would say, from my knowledge' of his general condition for before and after Eebruary, 1907 [the date of the contract], that he was-non compos mentis at that time,” — such evidence was sufficient to raise a question for determination by the jury as to the mental capacity of the maker of the contract, and the grant of a nonsuit was improper. Lunday v. Foreman, 129 Ga. 595 (59 S. E. 276); Gable v. Gable, 130 Ga. 689 (61 S. E. 595).

3. Other assignments of error were abandoned, and will not be considered.

Judgment reversed.

All the Justices concur. Scott & Davis and Oheney & Giles, for plaintiff. Glay & Morris, for defendant.