Driver v. Mott

1. An assignment of error on the granting of a nonsuit, on the ground that it was error and that the evidence offered required the submission of the issues to the jury and authorized a recovery for the plaintiff is a sufficient assignment of error. Ham v. Preston, 152 Ga. 244 (1c) (109 S.E. 505). The motion to dismiss the writ of error is denied.

2. The claim of the executor of Mrs. Annie Glisson to the mules sued for is based on the contention that the defendants executed an unqualified and absolute bill of sale to secure debt to the husband of Mrs. Glisson. The husband died intestate, and the executor's case is based on the theory that the husband of Mrs. Glisson died owning the title to the mules, that Mrs. Glisson was his sole heir at law, and that she had been discharged as administratrix of Mr. Glisson's estate. The only evidence tending to show that Mrs. Glisson was the sole heir at law of her husband was that she survived him and that he had no children at the time of his death. This proof is not sufficient to show that Mrs. Glisson was the sole heir at law of her husband, in that it did not show that there were no children of deceased children, if any, at the time of Mr. Glisson's death, and it did not show that there were no deceased children. In such a case the grant of a nonsuit is proper. Overby v. Phelps, 150 Ga. 293 (103 S.E. 431). Since the grant of a nonsuit was correct for the reason given above, it is not necessary to decide whether it was correct for another or other additional reasons. The court did not err in awarding a nonsuit.

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

DECIDED SEPTEMBER 13, 1947.