Brown & Bowen v. Robinson

By the Court.

Benning, J.

delivering the opinion.

The question is, whether the Court below was right in ordering a new trial in the Justices’ Court.

The ground on which that order was put, was, that the affidavit of Bowen, one of the plaintiffs, proving the first and last items in the account, the two amounting to $4 50, was not admissible as evidence.

But, first, the admission of the affidavit was not objected to by Robinson, the defendant, and the admission of illegal evidence is no ground for a new trial, when no objection is made to the admission of it. Harrison vs. Young, 9 Ga. 359.

Secondly, it is not clear, by any means, that the admission, of the affidavit was illegal. The affidavit was, to prove two items (out of a number) in an account. The statute says, that such an affidavit may be used for such a purpose, in the case in which .the party contracting the account removes, or resides, out of the county in which the account was contracted; the statute also says, that “if the defendant will make an affidavit” “ denying the justice” “ of the account, the said Court shall not give judgment for so much thereof :as may be so traversed or controverted, unless supported by other proof.” Cobb, 649.

Now if the account was contracted in Coweta, (the suit being in Heard) the admission of the affidavit was legal.

Are we not bound to presume that the account was contracted in Coweta ? Why was not the affidavit objected to ? ■Did the defendant know that the account was contracted in 'Coweta, and that on the making of such an objection, that fact would be proved by the^plaintiffs ? What other reason is supposable ? especially, seeing that the venue put, both to the account, and to the affidavit, is of Coweta county?

Thirdly, even if the objection to the affidavit was good, and was now available, is the case not one in which the verdiet ought, for another reason,not to be disturbed? The defendant put in a plea, in which he denied the justice of every item in the account, these two excepted; and as to these two, he was silent. Is not this an implied admission of the justice of these two items ? At least, may we not hold it so after verdict ? The other items were proved in an unexceptionable manner.

Upon the whole, we think that the Court erred in sustaining the certiorari.

Judgment reversed