Guest v. Tyner , 141 Ga. 402 ( 1914 )

Pish, C. J.

This case is controlled by the ruling in the first headnote in the case of Hines v. McLellan, 117 Ga. 845 (45 S. E. 279), that: “When at the conclusion of the evidence offered for the plaintiff it appears that he has failed to make out a prima facie case, it is error to direct a verdict for the defendant on which final judgment can be entered; but the court should award a nonsuit, thereby reserving to the plaintiff the right to institute ‘a subsequent action for the same cause,’ if he so desires. Civil Code [1895], § 5347; Exposition Cotton Mills v. W. & A. R. Co., 83 Ga. 441 (2) [10 S. E. 113].”

fa] The evidence introduced by the plaintiff did not make out a prima ■ facie case for her, nor did it affirmatively show that the defendants were entitled to a verdict.

(6) Upon the close of the plaintiff’s evidence and before the defendants either introduced evidence or announced closed, they moved for a direction of a verdict in their favor, which was granted, and exception was taken thereto. No specific assignment of error was made on the ground that the judgment should have been one of nonsuit rather than a direction of a verdict. In the exercise of the power of direction possessed by this court (Civil Code, § 6205), the judgment is affirmed, with direction that if, within ten days after the remittitur from this court is filed in the office of the clerk of the superior court, the plaintiff shall file a motion to have the verdict vacated and a judgment of nonsuit entered, this shall be done; otherwise the judgment will stand affirmed.

February 23, 1914.

Equitable petition. Before Judge Meadow. Madison superior court. September 4, 1912.

John E. Gordon and E. K. Lumpkin, for plaintiff. B. T. Moseley, Alex. Johnson, and J. F. L. Bond, for defendants.

Judgment affirmed, with direction.

All the Justices concur.