Moomaugh v. Everett & Co.

Decided November 10, 1891

Supreme Court of Georgia · decided 1891-11-10

<p>1. 'Where the suit is in the short form of complaint for two hundred and ten bags of flour of the value of four hundred and fifty dollars, with no further allegation of damages except that the defendant refuses to deliver the property or pay the profits thereof, there can be no recovery for more than four hundred and fifty dollars with interest thereon, there being no amendment of the declaration or offer to amend. Georgia R. R. & Banking Co. v. Crawley, 87 Ga. 191, 13 S. E. Rep. 508.</p> <p>2. Where the defendant in the court below moves for a new trial, which is granted unless the plaintiff will write off a portion of his recovery, and thereupon the plaintiff, declining to write off, brings a writ of error upon the judgment granting a new trial, the defendant cannot by cross-bill of exceptions assign error, not as committed by the court in any of its rulings on the motion for a new trial, but as committed on the trial itself and complained of in the motion. Judgment affirmed,, with direction.</p>

Cited by 3 later decisions — most recently July 1918

3 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1891-11-10

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¶1Cross-bill of exceptions dismissed.

¶2Action by Moomaugh under code, §3390, commenced December 14, 1889, to recover 210 bags of flour alleged *68to be of the value of $450. lie obtained a verdict for $600 on Juüe 12, 1891. The defendants moved for a new trial, which was granted unless the plaintiff would write off the excess of $450 as principal, with seven per cent, interest thereon from the date of filing the declaration to that of the verdict. To this ruling the plaintiff excepted. By cross-bill of excejrtions the defendants alleged that the court erred in certain charges and re- . fusals to charge set out in a motion for a new trial.

Simmons & Corrigan, for plaintiff.Cox & Reed, for defendant.