Sullivan v. Dixon , 72 Ga. App. 507 ( 1945 )

1. The first grant of a new trial will not be disturbed by the appellate court, unless it appear that the trial judge abused his discretion in granting it, and that the law and facts require the verdict. Code, § 6-1608; Williams v. Rowe, 26 Ga. App. 391 (106 S.E. 299), and cit.

2. Where the plaintiff, in an action of trover for the conversion of lumber cut from timber wrongfully taken from his land, introduces uncontradicted testimony as to the estimated quantity of the timber received by the defendants, and as to the estimated highest market value thereof, such evidence would be sufficient to authorize a verdict in some amount for the plaintiff; and where the undisputed evidence shows that the defendants received the lumber and exercised dominion over it in a manner inconsistent with the owner's rights, a conversion is shown although no demand and refusal are proved. Under such evidence and the law applicable thereto it can not be said that a verdict for the defendants was required. Milltown Lbr. Co. v. Carter, 5 Ga. App. 344 (63 S.E. 270); Council v. Nunn, 41 Ga. App. 407 (153 S.E. 234).

3. Where the defendants except to the grant of a new trial, and that judgment is affirmed, their exceptions pendente lite assigning error on an antecedent ruling can not be considered by this court, as the case is still pending below. Ogletree v. Livingston, 125 Ga. 548 (2) (54 S.E. 625); Athens Elec. Ry. Co. v. Jackson, 125 Ga. 551 (2) (54 S.E. 626); Armour Co. v. Burkhalter, 130 Ga. 370 (2) (60 S.E. 850); Purser v. Thompson, 135 Ga. 732 (2) (70 S.E. 569); Peninsular Naval Stores Co. v. Georgia, 144 Ga. 108 (2) (86 S.E. 223).

Judgment affirmed. Sutton, P. J., and Felton, J.,concur.

DECIDED JUNE 1, 1945.