Horne v. Phillips

Gardner, P. J.

1. The first proposition of law is that the property levied upon was found in the possession of H. W. Horne, Sr. This being true, the burden of proof was on the plaintiffs to prove that the property levied upon was not subject to fi. fa. We call attention to Crawford v. Kimbrough, 76 Ga. 299. See also Smith v. Wellborn, 75 Ga. 799.

2. The evidence, under all the facts and circumstances of this ' case, did not demand a verdict in favor of the plaintiffs. Under the evidence the judge was authorized to grant the first new trial. He was authorized to grant this trial for the first time to review his charge, in view of all the evidence. Of course, this charge is not before this court, but the trial court might consider it in view of all the facts and circumstances in order to determine whether or not the verdict is contrary to the evidence and to determine whether or not the verdict is contrary to law and the principles of justice and equity. The court might desire, also, to consider whether or not the arrangements of the plaintiffs were free from fraud because of the secret operation and conduct of the plaintiffs. These are questions which this court feels that the trial court should have the authority to investigate on a second trial. The trial court did not abuse, its discretion in the grant of a first new trial.

Judgment affirmed.

Townsend and Carlisle, JJ., concur.