Manning v. Gettys , 48 Ga. App. 203 ( 1934 )

Broyles, C. J.

1. “An assignment of error complaining that the court erred in directing a verdict is not sufficiently specific to present to this court the question whether the court erred in directing a verdict, unless it is alleged that the court erred in directing the verdict because there were issues of fact which should have been submitted to a jury and evidence introduced which would have authorized a jury to find a different verdict from that directed by the court.” Bosworth v. Nelson, 172 Ga. 612 (158 S. E. 306).

2. This case-was tried by a jury upon issues of fact, and a verdict in favor of the defendant was directed. The plaintiff, in a direct bill of exceptions, makes the following sole assignment of error: “To this order of the court directing a verdict, and to the verdict of the jury, and the final judgment of the court thereon, the plaintiff then and there excepted, and now excepts and assigns error thereon, and says that the court erred in directing said verdict, and entering judgment thereon, for that the evidence submitted by the plaintiff on all issues raised by the pleadings was legally sufficient to entitle the case to be submitted to the jury, without direction, for its determination of the issues of fact.”. This assignment of error measures up to the rule laid down in the Bosworth case, supra, and is sufficiently specific to present to this court the question whether the trial court erred in directing the verdict. (Broyles, C. J., dissents.)

3. The petition as amended shows that the suit was brought against J. M. Gettys “doing business under the trade name of J. M. Gettys Lumber Company.” The fact that upon the trial the undisputed evidence disclosed that the company was a firm or partnership composed of several persons was not sufficient to show a failure by the plaintiff to prove his case as laid. “Where one member of a copartnership converts to its use personal property of a third person, the owner has a right of action, at his option, against the copartnership, or against the individual partner guilty of the act of conversion, to recover the property so converted, or its proved value. . . The undisputed evidence showing that the personal property of the plaintiff had been converted to the use and benefit of the partnership by the individual member who was sued, a verdict directed in favor of the defendant was without evidence to support it, and was contrary to law.” Thompson v. Harris, 7 Ga. App. 212 (66 S. E. 629), and cit.; Zaban v. Coleman, 27 Ga. App. 376 (108 S. E. 555). The case of Myers v. Hook, 11 Ga. App. 517 (75 S. E. 833), cited by the defendant in error, is distinguished by its facts from the cases just cited and the instant case.

Decided January 10, 1934. L. A. Whipple, for plaintiff. B. L. Stephens, for defendant.

4. Upon the trial the evidence raised issues of fact which should have been submitted to the jury, and the court erred in directing a verdict for the defendant. Judgment reversed.

MacIntyre and Guerry, JJ., concur.