DocketNumber: 23391
Citation Numbers: 49 Ga. App. 468
Judges: Broyles, Guerra
Filed Date: 9/17/1934
Status: Precedential
Modified Date: 1/12/2023
Grant foreclosed a laborer’s and mechanic’s lien against Martin, alleging that Martin owed him $695.72 “for labor and work done by deponent as a mechanic, repair man, laborer and
It appears from the charge of the court that defendant Martin assumed the burden of proving the payment of the debt and was granted the opening and conclusion of the case. The evidence for the defendant was solely upon the issue of payment, and no issue as to the existence of the liens claimed by Grant was raised by the evidence. Conceding (but not deciding) that the allegation in the counter-affidavit, “that all statement of facts set out in plaintiff affidavit to foreclose said lien are all untrue,” would have been sufficient to put upon plaintiff the burden of establishing by proof the existence of his alleged liens if the defendant had not voluntarily assumed the burden of proving his plea of payment, yet where he did assume that burden, and where, if any issue as to the existence of the liens was attempted to be made in the counter-affidavit, the evidence did not support the allegation thereof, no such issue was before the jury, and the judge properly so instructed the jury. See, in this connection, Martin v. Nichols, 127 Ga. 705 (2), 709 (56 S. E. 995). On conflicting evidence the jury returned a verdict for the plaintiff. The verdict was authorized by the evidence; and, under the foregoing rulings, none of the grounds of the motion for a new trial is meritorious.
Judgment affirmed.